^\»*^ "o^*^''/ V^\/ V^'ao' \*^ 










"^^^ 'T .•••4 







\.^^ : 








l°x. 




;♦ .o'5 











'bV*' 



•i'. V .V^\!i^%'>.. .v^,:k*i!.%. .-^'^^iioH!-^^.. .v^ 









raw 



























*o. *-'77r« .'v 



-^o •• .-8> ^<^. •• n^" ^•^^■•••.4>' ^^^, 



TJIE 



BEl^CH AISTD BAK 



OF 



MISSISSIPPI. 



BY 

JAMES R LYNCH. 



NEW YORK : 
E. J. ILvLi; & Sox, rLI)I.ISIIEU3,, 1? MURUAY SliiEET. 

1881. 
JKDEXED 



PKEFACE. 

'T^JllS M-ork treats only of tlie dead, with tlic exception of 
-*- tlic last chapter, which is devoted to observations upon the 
characters of eminent living lawyers who are more than three 
score and ten years of age ; and in its preparation the author 
has sought to ]>resent accurate sketches of the distinguished ju- 
rists and lawyers who have graced the jurisprudence of Missis- 
sippi, together with an exposition of the pecnliar traits of cliar- 
acter by which they rose to eminence. 

It is not assumed, however, tliat thi< work cotiiprise.- the men- 
tion of every good man, or good lawyer of local repute, but 
only of such as, owing to tlieir varied pre-eminent qualities, 
are justly entitled to the fee of eminence. There were maiiy, 
very many, of the forjner class whose characters aie fully Avor- 
thy of the most meritoi'ious mention, and even a compendium 
of whose deserts would HU the pages of many volumes ; but it 
has been the design of the author to embrace oidy those whose 
pi'ofessional careers were characterized by transcendent geniuf, 
ajid which gave marked dignity and elevation to j\lis,sissippi ju- 
risprudence. If he has omitted any of this class, the ovei'siglit 
M'as due to a lack of infonnation respecting their eharacteristice, 
and their friends must take upon themselves, in ]Jart, the re- 
sponsibility, if such there be, of «-ithholding intimations which 
would have led to a thorough inquiry. 

The lives of lawyers are generally monotonous, and void of 
noticeable event. They leave, as a general thing, but little rec- 
ord of their merits, and a work devoted exclusively to profes- 
sional incidents must depend largely upon oral evidence and 
traditional testimony : and the only (piestion, in those cases, ie, 
to whom did the concurrence of the bar and the voice of the 
people accord the meed of eminence ? It is true that the latter 
test subjects, arl)itrai-ily, all claims to merit to the measure of 
Buccess, which cannot, in all cases, be accepted as a just crite- 
rion, for in this respect there is often a vice versa relation ; yet 
it is the plumb-line by which the ediiice nmst be maijily erected. 



iv- niEFACE. 

the :i<ljii-tineiit renderei], iind fn.nu whifh the detinitive meas- 
uivnicnt must be obtained. 

In the eoinpositloii of this work the author lias occupied a 
i'.eutral irround of ob.servation. Save iu two or three instances, 
he was neither tlie j)rofessional nor social conreniporarv of itssub- 
iects, and liad no prejudices to subserve or predilections to gratify. 
I,ord ("(^kesays that "a juror should stand iudltiereut :'S he 
.stands unsworn" ; and this lias been tlie exact position of the 
author. He has extended Ids researches throu^•hout the State, 
entleavored to obtain information from every known source, 
weighed the evidence, compared the testimony, drawn his con- 
clusions from established facts, and striven to treat of merit in 
respect to the degree in which he has found it. lie has fulLjwed 
the flash of the star of eminence, and subjected his pictures to 
the brilliancy of its twinklings. 

In the execution of his labors he has, in some instances, ex- 
perienced uuich dithculty in obtaining the necessary data, and 
much perplexity in finding phrases to express the nice disc^rim- 
iiiatioiis necessary in the analysis of character, and to define 
its niultifarions features, which he has found to be as varied as 
the outlines of form and tlie shades of color. But, such as it is, 
tiie author bids its departure u])on the M'ings of its fate ; and if, 
like Moah's raven, it be lost upon the wide expanse, let his in- 
tentions ])e its only memorial ; but if it should return with the 
olive-branch of favor, and the author should outlive the present 
older gcTieration of lawyers, he will supplement it witli a second 
volume, in furtherance of the rec(^rd of that eminence of which 
Mi-sissi[ipi furnishes so many illustrious examples, both among 
iier li\!ng and her dead. 

To Mr. Justice II. II. (-'halmers, of tlie Supreme Court, Gen- 
eral T. d. Wharton, and Attorney G'enej-al T. C. Catchiugs, 
v.'ho were appointed, res])ectively, by the (rovernor, the Chief 
.Iiistifi\ ;uid rhe author, as :in advisory ('ommitt(?e du the wo!-k, 
the author tenders his sincere thanks for their kind suggestions 
and whole-^ome counstd, and for the piricnce with which thev 
withstood the annoyance incirlental to that relation. 

JAMES I). LYNCH. 

West Point, Miss.. Docenibcr 1. 1S30. 



C0:N TENTS. 



CHAPTER I. 

I KTK 1) r CTl ox. 

Genius — Its source — Its universal application — Its varied 
manifestations — The certainty of its assertion — The Law 
its peculiar sphere — Fame- the meed of genius — The 
common law a prolific school of fame T 

CHAPTER II. 

The Mississipn Terhitoky — Its Judicial Estai!Lisiiment — 
The Bar— Eminent Lawyeks— ];!'.'>-181T. 

Harry Toulmin — Christopher Kankin — Thomas h. Rec-d — 
Rohert II. Adams — Lyman Harding- — (ieor^e Puindexter 
— Joseph E. Davis 13 

CHAPTER IlL 
Orgaxizatiox or the State (tOveknmkxt — Its Jeektai. 

ESTAELISIIMEXT — ThE BeXOH — EmIXLNT JURISTS — 1817-1832. 

John P. Hampton — Edward Turner — Powhatan Ellis — 
Joshua G. Clarke— John Taylor — .lohn Black — Ri(diard 
Stockton — Joshua Child — George Winchester — Harry 
Cage — Isaac R. Nicholson — Alexander Montgomery 79 

CHAPTER IV. 

The Bar— Eminent Law vers- 1817-183-3. 

Robert J. "Walker— William B. Griffith— William Vanner- 
gon — Spence M. Grayson — Alexander (i. Mc]Sutt — AVal- 
ter Leake — Edward C". Wilkinson — Eugene Magoe — 
liuckncr C. Harris — John T. Mt-Murran — Samuel S. 
Boyd — Samuel P. Mai'sh — John Heudcrsoi\ — Richard H. 
Webber 10(» 

CHAPTER Y. 

(C/umccri/.) 

The Bench— Chanceeeors axd Yk e-Chaxcellors — IS'21- 

1857. 
John A. Quitman — Robert H. Buckner — Stephen Cocke — 

Charles Scott — Joseph W. Chalmers— James M. Smiley. 149 

CHAPTER YI. 

The Coxstitetiox or 1832 — Remodeeixcj oe the Judiciary 
— The Bexch — Emixknt Jurists — 1832-18.50. 

William L. Sharkey — Cotesworth P. Smith — Daniel W. 
Wright— James i\ Trotter— P. Rutilius R. Prav— Joseph 
S. B. Thacher .* 1S7 



v: 



CONTEXTS. 



CHAPTER vir. 

The P.AR — Emixknt Lawyers — 1832-1850. 
Sergeant S. Prentiss — John I. <;nio*ti — Joseph Holt — Volney 
°E. llowiud— Anderson Ilutehinson — Daniel Mayes- 
William K. Anderson -15 

CllAPTKli VIII. 

TiiR Bar— Emikrnt Lawvers— 1S32-18G1. 

(Jeorcjc S. Yorger — IJogcr Barton — Jacob S. Yorger — Albert 
<r. Brown — Patrick W. Tompkins — Henry S. Foote — 
John H. Martin 2t)l 

CHAPTER IX. 
The Bar— Eminent Lawyers— 1832-1SG8. 

William 8. Barry — (reorge R. Clavton — David C. Glenn — 

Walker Brooke— James C. Mitchell 201 

CHAPTER X. 

The BEVcir— Eminent Jtrists — 1S50-18S0. 
William Ycrger — William L. Harris — Ephraim S. Fisher — 

Epiiraim G. Peyton — UoUin S. Tarpley 325 

CHAPTER XL 

Tin: Bar— Eminent Lawyers— 1832-1880. 

Amos R. Johnston — James T. Harrison — John B. Sale — 

William F. Dowd 371 

CHAPTER XIL 

The Bar — Eminent Lawyers — 1850-1880. 

F-alton Anderson — George L. Potter — William A. Lake — 
James Phelan — William R. Barksdalc — Ilarvev W. 
Walter "..... 120 

CHAPTER XIIL 

The Convention of 1801 — The Constitution of 18i>8 — A 
View of the Present State of Mississippi Jurispru- 
dence — The Bar— Eminent Livincj Lawyers who ark 
more than Threescore am* Ten Years Old. 

Smriel J. Gholson — Alexander M. Clavton — .Vlexandor H. 

Handy— .lanu's M. Howry— J. F. H". « Kiiborne 103 

APPEXDLX. 
Judicial Data 533 



CHAPTER I. 



I N T 11 O D U C T I O X . 

GENIUS ITS SOURCK — ITS UNIVERSAL APPLICATIOX — ITS VARIED MANI- 
FESTATIONS THE CERTAINTY OF ITS ASSERTION THE LAW ITS 

PECULIAR SPHERE FAME THE MEED OF GENIUS THE COMMON 

LAW A PROLIFIC SCHOOL OF FAME. 

The definition of that intuitive principle or subtle quality of 
the mind, which we call genius, is yet an unanswered question ; 
at least, it has never received an intelligent inter])retation 
among men. Its source lies concealed in the unexplored re- 
cesses of human nature ; nor is its jDresence known until, 
awakened by the touch of opportunity, it bursts from its gyves, 
and flashes upon the world M'ith a light that illuminates the 
extending scope of its own vision. 

But, whatever may be the abstract nature of genius, its qual- 
ities are readily recognized, and its manifestations easily judged. 
Its course is upward and onward, and its fliglit is bounded by 
no definable horizon, while its zenith is liidden somewhere in 
the realms of eternal and untarnished light. 

The application of genius is universal, and it has kindled its 
beacons along the highway of every sphere of life, penetrated 
the occult depths and obscure labyrinths of every science, and 
illumined a path for the advancement of every art. It is, in- 
deed, the assignable coefficient of all enterprise and the mul- 
tiplicative exponent of all progress. 

ISTor is genius to be measured by its means of appliance. It 
perhaps required as much genius in Adam and Eve to patch 
their fig-leaf aprons as in the manufacture of the finest fabrics 
of modern art, and as much in Koah to fit the timbers of the 
ark as in the construction of the proudest vessel that ploughs 
the waves of the western world. But from the summit of 



8 BENCH AND BAR OF MISSISSIPPI. 

Ararat it winged its way with new-fledged pinions nntil it 
rested in triumiDli upon the pinnacle of Solomon's Temple ; 
whence it gave sanctified utterance to the tongue of prophecy, 
and guided the pen of inspiration along the pages of Holy Writ. 
Yet, while the hand of genius was hewing and fashioning the 
pines of Lebanon into the columns of the great temple, with up- 
lifted eye it gazed into the starry canopy of heaven, caught the 
first glimpse of the star of Christianity, and, like a sentinel on 
the watch-tower, heralded every gleam of knowledge that flashed 
across its vision ; and thence, with increased glow, it illumi- 
nated the pages of Grecian and Roman literature, and evoked 
those sparkling gems of thought whose coruscations will dazzle 
the eyes of the intellectual world to the end of remotest time. 

But, in conformity with the vicissitudes of all human gran- 
deur, the eyes of genius were at length closed by the cold 
finger of Fate ; and, hurled by the hand of barbarism from the 
Tarpeian rock, it lay for ages hiddeii beneath the wreck and 
ruins of the Roman Empire ; yet the spark glowed on until it 
slowly arose from the smouldering ashes, burst through the 
pall of the dark ages, and rekindled its blaze in the revival of 
learning. 

'Yet, while the true course of genius is upward, it is not 
always subordinated to the good of mankind, but is often per- 
verted and prostituted to unhallowed purposes by the wayward 
passions that flourish in its train. While with pious sweat it 
could carve the lofty architraves and rear the temple of Jeho- 
vah, it could with sacrilegious hand heave the huge rocks, 
and pile them upon the Tower of Babel, with mad desire to 
invade the very chambers of the Almighty. While it strung 
the pastoral lyre and tuned the shepherd's reed, it gave 
power to the destructive engines of Archimedes, and the 
fatal twang to the archer's bow ; and though it glowed in 
the natural laws of Kepler and the civil code of Justinian, 
flashed through the glasses of Galileo, and illuminated the hal- 
lowed visions of Luther, it also glittered in the crown of Alex- 
ander, burnislied the helmet of Civsar, and flamed in the sword 
of Bonaparte. 

But, whatever may be the mode of its indication : whether it 



INTRODUCTION. 9 

sparkles in the eye of the astronomer, smiles upon the lips of 
the minstrel, frowns npon the brow of the misanthrope, decks 
the finger of the artisan, or emblazons the sword of the con- 
queror, the characteristics of genius are the same. It is only 
the purposes to which it is devoted, the motives by which it is 
guided, and the brilliancy of its manifestations, that give to it any 
variety of character ; and these are as varied as the channels of 
human thonght, the fires of human passions, and the spheres of 
human action. It is the same principle that gives inspiration to 
the poet, conception of beauty to the artist, brilliancy of 
argument to the advocate, a lucid discernment to the judge, 
religious fervor to the devotee, and ingenuity to the midnight 
burglar and the common swindler. But in whatever direction 
its prowess may be exerted, its qualities are soon manifested. 

A man of genius is sure to assert his superiority in whatever 
walk of life he may direct his course, and whether it be for the 
good, or to the detriment of society, depends ujDon the j^assions 
by which it is actuated. " Such men," says Lord Boling- 
broke, speaking of superior spirits in elevated positions, " either 
apjDcar like ministers of divine vengeance, and their course 
through the world is marked by desolation and oppression, by 
poverty and servitude ; or they are the guardian angels of the 
country they inhabit, busy to avert even the most distant evil, 
and to maintain or to procure peace, plenty, and the greatest 
of all human blessings, liberty." 

But, however certain may be the develojjment of genius, its 
conspicuity is often governed by circumstances, and frequently 
trammelled by the presence of other and incompatible qualities. 
Chief among these is timidity — a lack of courage sufficient to 
command on all occasions the full and clear exercise of the fac- 
ulties, and to lay hold with proper alacrity and vigor upon 
great and rare opportunities. 

It was from this cause that Cicero failed in his defence of 
Milo. lie did not have the courage to display his usual and 
natural eloquence in the face of prejudice and under the frown 
of power ; and Lord Erskine, through his reluctance to encoun- 
ter Mr, Pitt and Edmund Burke, lost the great opportunity / 
of his life in declining the defence of Warren Hastings ; while, 



10 BENCH AND BAR OF MISSISSIPPI. 

on the otlier liand, Lord Brougham wreathed his brow with im- 
mortal glorj by his boki defence of the iinfortmiate Queen Car- 
oline, in the face of courtly clamor and kingly opposition. ^ 

Genius is often marred also by passion and prejudice. If it 
Avould retain its lustre, though clothed in the tinsel of elo- 
quence, its lips must be rouged with the carmine of kindness and 
complacency. The angry invectives of Achilles gained him 
no sympathy, while the soothing eloquence of Nestor swayed 
the minds of the Grecian host. It is true that a judicious ap- 
peal ad honunem sometimes produces a wonderful effect, as in 
the first oration against Catiline ; but the eloquence of genius 
rarely distills from the pale lijDS of anger. The furious accusa- 
tions of Tertullus produced no formidable effect ; but we are 
told, that when Paul reasoned the court trembled ; and Lord. 
Coke greatly impaired his efficiency, and injured himself in the 
eyes of posterity, by his virulence on the trial of Sir Walter 
llaleigh when he condescended to thou him as a viper and 
traitor.'" 

(,)f all the schools of science, there is no one so prolific of the 
fruits of genius as that of the law. There is no sphere in life 
tliat presents so many necessities and motives for its exercise, 
and such a vast field for its development, as that of a lawyer. 
His constant intercourse with all sorts and conditions of men, 
and his frequent dealings with all the multiplied concerns of 
life, render him familiar with human nature, with all the work- 
ings of the human heart : its virtues and its vices, its strength 
and weakness, and the varied manifestations of its passions ; and 
he necessarily becomes an expert in all the motives and a detec- 
tive of all the springs of human action. 

The wide scope of his learning, the confidence reposed in his 
honor and integrity, his tutored conservatism, and usual free- 
dom froir^ the virulence of party and the malignancy of faction, 

* When all argument failed him, Coke, then Attorney-General, poured a 
torrent of abusive epithets upon the noble prisoner, and applied to him the 
term thou : " Thou hast an English face and a Spanish heart, thou traitor ; 
fori thou tliee. thou viper." A reference is made to this signification of 
thou in Twe'fth Night, when Sir Toby Belch, in urging Sir Andrew Aguecheek 
to send u sufficiently provocative challenge to Viola, suggests : " If thou 
ihou'st him some thrice, it shall not be amiss." 



mTRODUCTIOJs^. 11 

constitute for the u^mglit lawyer a just claim to be a loaJer of 
his fellow-men ; and when to this broad field of knowleOj^e he 
brings the rare gift of genius, it, at once, places him in the line 
of distinction, and, with the aid of other and usually concomi- 
tant virtues, raises him, sooner or later, to a proud eminence of 
superiority, and procures for him a just title to the fee of fame. 
But, while the bar offers the most illimitable scope for its ex- 
ercise, it is the severest test, and most precise and exacting of 
all the measures of genius. It permits no successful charlatan- 
ism, no ephemera of superficiality and pretention, but subjects 
every candidate for superiority, ewery claimant to the quality 
of excellence, to a just and infallible estimation. 

A title to fame acquired under the eye of such close, com- 
petent, and penetrating scrutiny, amid such exacting circum- 
stances, and mider such a nice adjustment of qualifications, is 
surely of an exalted character, and worthy of the highest admi- 
ration of mankind. Such fame is not of that kind which Pope 
would have us believe to be a temple of ice melting away with 
each returning sun ; nor is it a mere second life upon the breath 
of others, or posthumous inheritance founded upon custom or 
arbitrary rules of descent ; nor does its tenure depend upon any 
uncertain fine. It is the most certain and enduring of all 
earthly possessions, the idtima thiile of human attainment, 
the crowning glory of pre-eminent virtue, the meed of an im- 
mortal name, No ; 

Say not to me such greatness ever dies, 
Or Lethe's waves can over virtue roll ; 
For glory has its realms beyond the skies, 
And there it copies of its earthly scroll, 
There sets its music to celestial chime ; 
And when its bright and proud historic page 
No longer flutters to the breeze of time, 
Beyond the reach of mjin's invidious rage, 
Its shafts will rise where time knows neither youth nor age. 

The vast and intricate system of common-law jurisprudence, 
with its comprehensive doctrines, its nice shades, subtle dis- 
tinctions, and unlimited application, has been from time imme- 



12 BENCH AN'D BAR OF MISSISSIPPI. 

morial a fertile field of fame. It is there that we find those 
brilliant precedents of eminence, those illustrious examples of 
true greatness, which have afforded marks and models for the 
aspiration of every country, and of every age since the days of 
llunnemede. 

It is there that ambition may revel among the most gorgeous 
pictures of glory ; where genius can find an unlimited scope for 
the exercise of its utmost powers ; where freedom may find 
shelter from the pelting storyis of oppression ; where the states- 
man can gather material for the fabric of the wisest govern- 
ment, and the patriot may clothe himself in more than Vulca- 
nian armor for the defence of the liberty and honor of his 
country. 

It was in this field that Coke and Ilardwicke, Mansfield, El- 
don, and Burke, and a host of others no less renowned, erected 
their monuments of eternal glory. Notwithstanding the ditti- 
culties of the way, the height and ruggedness of the ascent, 
there is no sphere in life where so many hands are beckoning 
from the lofty eminence, and where so many footprints lead to 
the summit, as the law. Nor are these confined to the steps of 
the Inner Temple, or to England's soil, i)ut up the same path- 
way, and to a no less degree of eminence, ascended our Mar- 
shalls, Story s, Taneys, Kents, and Sharkeys, and others, to 
whom it will be no disparagement to add, to a less degree. 

It is the purpose of this work to trace the tracks made by the 
members of the Bench and Bar of Mississippi along this illu- 
minated highway ; to assign to each, as nearly as possible, the 
just measure of his progress ; and to designate the qualities of 
mind and traits of character by which it was advanced or re- 
tarded ; and, above all, to present a record of virtue and genius 
that will, for all time, inspire the young men of Mississippi with 
a lofty patriotism, a laudable ambition, and a determination to 
achieve distinction and success. 



CHAPTER 11. 



THE MISSISSIPPI TERRITORY— ITS JUDICIAL ESTABLISH- 
MENT— THE BAR— EMINENT LAWYERS— 1795-1817. 

IIAKRY TOULMIN CHRISTOPHER RANKIN THOMAS B. REED ROBERT 

H. ADAMS— LYMAN HARDING GEOROE POINDEXTER JOSEPH E. 

DAVIS. 

Thk coiiiitiy comprised in the State of Mississippi formed a 
part of what was known as the Mississippi Territory, and 2)rior 
to the year 1802, when it was ceded to the United States, be- 
longed to the State of Georgia. It was also claimed by the King 
of Spain, as forming a part of British "West Florida, and was 
occupied by Spanish troops from 1788 until 1795, when, by a 
treaty between Spain and the United States, the pre-existing 
rights of Georgia were recognized and confirmed, and the 
Spanish troops withdrawn. 

But, from the year 178;^, and during the entire period of the 
Spanish occupation, Georgia, supported by the Government of 
the United States, continued to assert her claim of OM'nership in 
the soil, and by legislative enactments maintained her right of 
sovereignty and eminent domain, and extended her laws and 
jurisdiction over the country. Neither Georgia nor the United 
States ever acquiesced in the Spanish occupancy ; nor did the 
King of Spain exercise any civil jurisdiction over the country. 
His dominion was confined to the lines of his military camps and 
garrisons ; hence, upon its evacuation by the Spanish troops, it 
was held that the wrongful occupancy Ipft no trace of the civil 
law of Spain upon the jurisprudence of the country ; and on 
the organization of the Territorial government in the same year 
of the Spanish treaty, the common law was declared in the Ter- 
ritorial constitution to be the law of the land. This provision was 
also held to be a nullitication of the Georgia statutes, which 



/ 



14 BEXCn AXD BAR OF MISSISSIPPI. 

otherwise would have become, by analogy, a part of the common 
law of the Territory, as the English statutes in force at the 
Declaration of Independence formed a part of the common law 
of the States, and which were held to have been also excluded 
by this act from o])eration in the Territory. 

Thus it will be seen that a pure common-law course of juris- 
prudence was early established in the Territory ; and this con- 
tinues to be the law of Mississippi in all cases where it is appli- 
cable to our circumstances, adapted to the spirit of our institu- 
tions, and has not been expressly repealed, enlarged, or modified 
by statute or varied by usage ; and our courts have constantly 
rested a scrutinizing and jealous eye upon any statute passed in 
its derogation. They have invariably given to such statutes a 
strict construction, careful not to enlarge their import or opera- 
tion beyond the expressed intention of the Legislature. Hence 
the legislative invasions of the common law in Mississippi have 
been confined, for the most part, to such instances as are ren- 
dered necessary by the character of our government and the 
condition of our society ; and it is to be regretted that the 
conmion-law rules of pleading have been so simplified by statute 
and the practice of the courts as to leave a broad gap in the 
bar for the entrance of incompetence and ignorance. In this 
respect it is to be confessed that a noble science has been de- 
graded through a mistaken notion of expediency. 

Thus the lawyers of Mississippi were early introduced into 
that illimitable and boundless field of jurisprudence, whose nice 
distinctions, subtle intricacies, and comprehensive scope, had 
awakened and given food and impulse to that brilliant array of 
greatness which emblazons with glory the history of the Eng- 
lish courts. 

In establishing the Territorial courts, the course of the com- 
mon law was, in every instance, cited as the one to be pursued. 
Indeed, the constitution and powers of these courts, their charac- 
ters, jurisdiction, and mode of procedure were all made similar, 
as far as practicable, to the common-law courts as already estab- 
lished in the States ; and as the various changes and modifica- 
tions to which they have from time to time been subjected, 
evince the necessities of the progress as well as the pecu- 



THE MISSISSIPPI TERHITOEY. 15 

liarities of our society, I will present their character and 
constitution in the order of their establisliment. An act 
passed on the 28tli day of February, 179'.), by the Territorial 
Council, which consisted of the Governor and tlie three Terri- 
torial judges, provided for the establishment of a court to be 
styled the General Quarter Sessions of the Peace., which was to 
be held four times annually in every county, and that a com- 
petent number of justices should be nominated and commissioned 
by the Governor in every county, under the seal of the Terri- 
tory, which justices, or any three of them^ one being a justice 
of the quorum, should hold the General Sessions of the Peace 
when and as often as occasion required. 

The power of these courts extended to the cognizance of all 
crimes and misdemeanors, of whatever nature or kind, com- 
mitted w^ithin their respective counties, t'le punishment of 
which did not extend to life, limb, or imprisonment for more 
than a year, or forfeiture of goods and chattels, or lands and 
tenements, to the government of the Territory. 

From the judgment of tliese courts a writ of error lay to the 
Supreme Territorial Court ; and the same act provided that the 
Territorial judges should hold a supreme court once in every 
year in each county, at the place appointed for the courts of 
General Quarter Sessions. 

To these courts belonged, as a matter of course, the highest 
judicial functions, and all the powers and scope of the Territorial 
jurisprudence. Besides their appellate jurisdiction, they had 
all the original functions of common-law courts of assize, of 
oyer and terminer, and of general jail delivery. 

By this same act was established also a court of common 
pleas, which was to be held four times annually in each county, 
and for which a competent number of justices was to be com- 
missioned by the Governor, which said jutsiees or any three of 
them, according to the tenor and direction of their commis- 
sions, should hold pleas of assize, scire facias replevins, and hear 
and determine all manner of pleas, actions, suits, and causes, 
civil, personal, real, and mixed, and according to the course 
of the cominon law. 

In addition to these, an act was passed at the same session of 



16 BENCH AND BAR OF MISSISSIPPI. 

the Legislative Council appointing a judge of probate in each 
county, who should have cognizance of all matters belonging 
and pertaining to a court of probate, except the rendering of 
definitive sentences and final decrees. These courts were to be 
held four times annually in each county, and, whenever it was 
necessary that final decrees should be rendered, the judge was 
required to call to his aid two of the justices of the court of 
common pleas, and, when thus constituted, the court had full 
probate jurisdiction. 

In the same year an act was passed, entitled " A law for the 
easy and speedy I'ecovery of small debts," which provided that, 
upon complaint being made to any justice of the common pleas 
or of the peace against any debtor whose debt was under 
eight dollars, he should issue his writ, causing the parties to 
be brought before him forthwith, and, after hearing the evi- 
dence, should forthwith give judgment in the matter, which 
should be final and conclusive to all the parties to the action, 
without appeal ; and if the judgment was not innnediately 
satisfied, and no effects were found sufficient to produce the 
amount, the constable was required to take the debtor to jail, 
where he was to be safely kept until the sum recovered and all 
costs should be paid. 

By this same act, debts amounting to eight dollars and up- 
ward, and not exceeding twenty dollars, were made cognizable 
before any justice of the common pleas or justice of the peace 
in the county in which the defendant might reside ; who, upon 
complaint, should issue his capias, or summons, if the defend- 
ant was a freeholder, requiring the parties to appear before 
him ; and upon judgment being rendered and remaining un- 
satisfied, the constable or sheriff was required to convey the 
debtor to jail, where he was to be safely kept until the amount 
of the judgment and all costs were paid. 

In 1803, the Territorial Assembly erected the town of Natchez 
into a city, and there established the first mayor's court in the 
Territory. This court had jurisdiction of all crimes and tres- 
passes committed within the city, in which the punishment did 
not exceed a fine of fifty dollars, inqjrisonnient for one month, 
sitting in the stocks, or standing in the pillory ; and of all civil 



THE MISSISSIPPI TERKITORY. 17 

actions originating in the city for any amount not exceeding one 
hundred dollars ; and all civil proceedings were made summary, 
unless a jury was demanded, which either party might do if the 
matter in controversy exceeded twenty dollars. 

From this court an appeal, when the amount involved ex- 
ceeded fifty dollars, lay to the Superior Court of Adams County. 
An appeal lay also from the judgments of the mayor to the city 
council, held by the mayor and aldermen, who were all com- 
missioned justices of the peace. 

These courts performed the judicature of the Territorial gov- 
ernment, with but few changes in their functions, until the year 
180Y, when its equity cognizance was, for the first time, de- 
clared and established. 

However simple and arbitrary may appear this system, it was 
perhaps the best and most suitable one that could be devised for 
the government of a Territory in which the pojDulation was 
sparse and pronn'scuous, where business transactions were con- 
ducted on a small scale, and where it was necessary to enforce 
the law of rneum and tuum in a simple and summary manner. 

A digest of its judicature is a truthful indication of the state 
of a community ; and the great danger in the establishment of 
the jurisprudence of a new country lies in the introduction of 
the complex systems of older commonwealths. 

While the courts of the Mississippi Territory were being 
strained into conformity with the requirements and vast ma- 
chinery of the English common law, they were often perplexed 
with the multitude of complications arising from the various 
tenures of realty existing, or supposed to exist, in the Terri- 
tory, Great Britain had claimed the country as being an ap- 
pendage of the colony of Georgia, and in confirmation of its 
claim had made grants of lands to its subjects. This claim, as 
we have seen, was renewed by the State of Georgia, which also 
issued patents to its citizens. Tlien followed the Spanish occu- 
pation, and large grants of the Territorial lands were made by 
the Spanish Government ; and notwithstanding the acknowledg- 
ment by Spain of the pre-existing rights of Georgia, we find the 
Territorial courts, and even the early courts of the State, 
greatly confused in respect to the, laws of alienation and descent 
2 



18 BENCH AND BAR OF MISSISSIPPI. 

of landed property. While the civil law was, from the first, 
protested and ignored, yet it seemed difficult to reconcile the 
questions arising from ihe Spanish grants, held under the civil 
code, Avitli tlie rules of the common law. These questions 
were, however, finally settled by the extinction of the supposed 
civil tenures, and an exclusive ajiplication of the common-law 
rules. 

But let us return to the organization of the Territorial courts. 
The act of February lOtli, 1807, ordained that the Supreme 
Court of the Territory and the Superior Court of the District of 
Washington should also be and act as courts in chancery, and 
sliould have and exercise all the power, authority, and jurisdic- 
tion incident to courts of chancery, and clothed the Territorial 
judges with power to issue all remedial writs. 

This act also established a county court, to be composed of 
three justices of the quorum, and gave to them the powers of 
probate and cognizance of all matters pertaining to orphans, 
the registry of deeds, and the control of the county police. 
This court superseded the powers of probate which had been 
established, and its jurisdiction extended to all cases in which 
the amount involved did not exceed one thousand dollars, ex- 
cept in real actions ; and from its proceedings an apjjeal lay to 
the superior or circuit court of the county, which was presided 
over by one of the Territorial judges. These courts were estab- 
lished by this same act, and were invested with general origi- 
nal civil and criminal jurisdiction, and with an appellate juris- 
diction from the count}' courts. The judges were prohibited 
from charging juries in respect to matters of fact, but they 
might sum up and state the testimony, and declare the law ; 
and the Governor of the Territory was authorized and required, 
by and with the advice and consent of two of the Legislative 
Council, as often as necessary, to issue a commission to the 
judges of the superior courts of the Territory, empowering them, 
or any two of them, or the judge of the Superior Court of 
Washington District alone, in the district, to hold a court of ses- 
sions of the peace, and oyer and terminer, for the trial of 
criminals of whatever nature or degree, and to give judgment 
and awai'd execution. 



THE MISSISSIPPI TEREITOEY. I9~ 

But the judges might hold a special term wlien necessary, at 
their own discretion, being empowered to do so by an act fixing 
the mode of summoning juries, and for other purposes. And 
this same act estabhshed a court of record, to be called and 
styled the " Supreme Court of the Mississippi Territory.'" 
This court was to beheld by the Territorial judges at a fixed and 
designated place, but they were also required to hold a court 
of record, to be called and styled the "Circuit Court of the 
County of " (naming the county), twice in every year in each of 
the counties of Wilkinson, Adams, Jefferson, and Claiborne; but 
these county courts were to have cognizance only of those cases 
in which the amount claimed amounted to two hundred dol- 
lars ; all cases involving a less amount being referred to tlie 
county court before the justices of the quorum. 

But in 1809, the Legislature abolished the circuit and supreme 
courts, and conferred their jurisdiction upon a superior court 
of law and equity, to be held in each county. 

This system remained unchanged until the year 1814, when 
it was enacted that the Territorial judges should hold, semi- 
annually, at the court-house in Adams County, a Supreme Coii^rt 
of Errors and Appeals. From this court writs of error issued 
to the several superior courts of law and equity ; also writs of 
certiorari, habeas corpus, and all remedial writs pertainable to 
a supreme court of errors and appeals ; but no cause could be 
removed into this court until final judgment in the court below, 
except when the judge below doubted as to tlie law or rule of 
decision ; in that case he might respite the final judgment and 
refer the question to the Supreme Court, He was required, in 
this case, to send up a written statement, if not already of 
record, of the matter or points in doubt, together with the other 
proceedings in the cause, and thereupon the Supreme Court 
took cognizance, granted judgment, and awarded execution, 
unless it was necessary to ascertain some fact that went to tlie 
merits ; in that case the cause was remanded to the court below 
for the action of the jury. 

By this act the several superior courts of la^v and equity 
were given exclusive jurisdiction and cognizance of all actions 
and suits in which the value of the matter in controversy ex- 



20 BENCH AND BAR OF MISSISSIPPI. 

ceeded fifty dollars ; and the jurisdiction of the justice courts 
was extended to that amount. 

This was, the character and constitution of the Territorial courts 
in 1817, when the State Government was inaugurated. In con- 
nection with the character and functions of its courts, the author 
would like to be ahle to trace the history of the most eminent 
judges of the Territorial Government ; and his inability in this 
respect is a source of as much regret to him as it can be of dis- 
appointment to the reader. He has been able to obtain but lit- 
tle authentic information in regard to the early officers of the 
Territory, either from record or tradition. Those appointed by 
Mr, Adams and Mr. Jefferson were either Northern men or 
Virginians, and many of them were mere favorites of the ad- 
ministration under which they were appointed. 

But the bar of the State has, from the first establishment of 
its courts, been adorned with pre-eminent ability. The rich- 
ness and reputation of its lands, and the conflicting tenures by 
which they were held, arising from British, Spanish, and 
Georgia grants ; the efforts of the early courts to reconcile the 
conflicting rules of the civil and common law in regard to aliena- 
tion and descent ; the establishment of banks of unlimited 
issues, and the consequent speculation and reactionary crises, 
produced a s''ast amount of litigation, that required and early at- 
tracted to the Mississippi Territory an unusual an'ay of legal 
talent. 

It is to be regretted that so little can be ascertained, at this 
day, in respect to the nativity and private cliaracter of many 
of the eminent lawyers of that period ; their early struggles, 
their vigor of resolution ; their laborious ascent and final tri- 
umph would surely present a narrative sparkling with instruc- 
tive incidents and striking events ; but the corroding finger of 
time has dimmed the records of their greatness, and stilled the 
hearts upon whose tablets their virtues were inscribed, leaving 
only, here and there, a glimmer of those lights whose brilliancy 
has been rekindled with a purer flame in a higher and eternal 
sphere. Notwithstanding that the public career of nearly all of 
the following gentlemen extended far down in the annals of the 



HAEEY TOULMIN. 21 

State, yet they were closely connected with the establishment 
of the Territorial jurisprudence, and for that reason the sketches 
of their lives have been assii^ned to this chapter. 

HARRY TOULMIX.--" / 




It is not known of what State^udge Toulmin was a native. 
He was appointed b^'' JVfrT Jefferson to be one of the judges of 
the Mississippi Territory ; and we find him exercising that 
office in the year 1805, when he was chosen by the General As- 
sembly to digest the laws of the Territory. This task he per- 
formed with fidelity and ability. His Digest is forcible, lucid, 
and comprehensive, and shows a thorough acquaintance with the 
rules of the common law, and a profound and accurate concep- 
tion of the laws best adapted to the society of the Territory, 
and most conducive to its progress. In 1800, we find the act- 
ing Governor of the Territory congratulating the Assembly on 
the completion of this able compilation of the laws, and com- 
mending the author as deserving the thanks of his country, and 
suggesting that his reward should be proportionate to his merits. 

In 1807, the General Assembly, after some few alterations 
and amendments, adopted the Digest as the law of the Terri- 
tory. The Assembly at the same time required Judge Toulmin 
to add to his Digest all the laws passed at that session, and 
declared that when so enlarged it should bear the title of " The 
Statutes of the Mississippi Territory, revised and digested by the 
authority of the General Assembly," and that, after the ensuing 
October, all the laws of the governor and judges, all acts of the 
General Assembly of the Mississippi Territory, and all statutes 
of England and Great Britain, not contained in the said volume 
of statutes, should cease to be of force or validity in the Terri- 
tory. 

Judge Toulmin was also requested by the Assembly to pre- 
pare a set of forms and brief general principles for the informa- 
tion of justices of the peace, and to furnish the public printer 
with such ordinances and acts of Congress as related to the 
Mississippi Territory, to land titles within the same, to crimes 



IC-^ — J 



\ ■ -X 



22 BENCH AND BAR OF MISSISSIPPI. 

and misdemeanors, and the intercourse with the Indian nations, 
with the articles of cession between the United States and 
Georgia ; and that the whole be added to the volume of 
statutes. 

The Digest of Judge Toulmin, thus enlarged, begins with 
the first proclamation of Winthrop Sargent, first Governor of 
the Mississippi Territory, creating the two first counties, Adams 
and Pickering, the latter being afterward changed to Jefferson ; 
and embraces all the laws in force on the 1st day of March, 
1808, and is of value, not only on account of the genius and 
ability displayed in its adaptation, but also on account of the 
knowledge it affords of the origin and progress of oUr jurispru- 
dence, the sure indication of the state and progress of society. 

The last record we find of Judge Toulmin is a correspond- 
ence, held in 1813, between him and Governor David Holmes, 
in regard to organizing and equipping the Territorial troops in 
anticipation of the approaching Creek war, after which he 
passed from the stage of public affairs, and carried Math him into 
his retirement the meed of a life adorned with a conscious 
and acknowledged benefaction. 



CHPJSTOPHER RANKIN. 

The subject of this sketch was born in Pennsylvania, and was 
educated at Cannonsburg. He then emigrated to Georgia, 
where he taught a village school and prepared himself for the 
bar. In 1809, he removed to Mississippi, and was for a long 
time an able and efficient member of the Territorial Legisla- 
ture. He represented the county of Amite, out of which the 
county of Rankin was formed, and named in his honor. He 
was also a member of the convention that formed and adopted 
the first constitution of Mississippi. He was an able and suc- 
cessful lawyer, a man of stern integrity and unswerving patriot- 
ism. He possessed in a high degree those qualities of mind 
and heart so necessary in the composition of eminence — a sound 
judgment, an unwearied energy, and an uprightness of charac- 
ter which commended him to the confidence and esteem of his 



THOMAS B. REED. 23 

fellow-citizens. He did mucli toward the establishment of that 
sound basis upon which the splendid fabric of our juris-grudence 
has been reared, 

Mr. Rankin was engaged in some of the first cases argued 
before the Supreme Court of the State, and to the management 
of which he brought that skill and learnino; which had signalized 
his career before the courts of the Territory, He continued his 
practice with increasing reputation until the year 1821, when 
he was elected to a seat in the national House of Representa- 
tives, to succeed the gifted Poindexter. This office he filled 
with great credit and fidelity, though he was not gifted with 
any eminent powers of oratory. He was more of a matter-of- 
fact advocate and legal logician than polished elocutionist. He 
remained in Congress until 1827, when he retired from political 
life, and died in Washington, carrying with him to his grave the 
unsullied laurels of a useful and successful career, both in the 
council and the forum, and, it might be added, in all the rela- 
tions of life. 



THOMAS B. REED. 

Mr, Reed was a native of Kentucky, and had acquired some 
reputation as a lawyer before emigrating to the Mississippi 
Territory. He was remarkable for his laborious application and 
unswerving devotion to his profession, to which he adapted and 
devoted all the energies of his nature. To this feature of his 
character, and to the native vigor of his mind, was due that 
thorough mastery of the mysteries of the common law for which 
he became celebrated. Plis early education had been neglected, 
and his store of general learning was limited, hence he at- 
tempted no display of eloquence other than that whicli his 
thorough knowledge of the law evoked and his genius inspired. 
Though stiff and punctilious in his manners and bearing, he 
was a favorite among the members of the bar, especially the 
younger members, to whom he was ever ready to extend a lift- 
ing hand, and to whom he revealed beneath his seeming hauteur 
a kind and generous heart. 



24 BENCH AND BAE OF MISSISSIPPI. 

The reputation of Mr. Reed rose rapidly on his aj^pearance 
at tlie bar of the Territory. The intricate questions arising from 
tlie variety of land tenures, and the difficult application of the 
common-law rules to the developing and multiplying concerns 
of the country, afforded an ample field for his genius and the 
exercise of his familiarity with the precedents and decisions of 
the common-law courts. 

Mr. Reed made his appearance before the Supreme Court of 
the State in the first criminal case brought before that tribunal, 
the State vs. the Blennerhassetts, which he argued for the de- 
fence, at the June term, 1818. His reputation at the bar con- 
tinued in the ascendency, and, in 1821, he was elected Attorney- 
General of the State, which office he filled for four years with 
great ability. In 1827, he was elected to the Senate of the 
United States. His legal knowledge and familiarity with the 
fundamental principles of our Government soon attracted atten- 
tion in that body of able lawyers ; and his speech upon what 
was known as the " Judiciary Question" gained for him the 
admiratiou of the Senate, and was highly commended by the 
press of the period. He died in 1829. 



ROBERT H. ADAMS. 

Mr. Adams was a native of Virginia, and born of poor and 
obscure parents. It is said that in his early youth he was ap- 
prenticed to the cooper's trade, and pursued that occnpation into 
manhood. He consequently obtained but little education in his 
youth ; but he possessed a native endowment of genius and 
perseverance, which inspired his bosom with an ambition to 
achieve a place and a name among men. Like many young 
men of this character, Mr. Adams, notwithstanding the appar- 
ently insuperable difficulties attending his path, directed his at- 
tention to the study of the law. His conscious vigor and natural 
sedulity of mind dispelled the gloom that hung over his pros- 
pects, and his resolution prompted him to undertake that which 
In's ambition coveted. After acquiring a sufficient knowledge of 
the rudiments of law to gain him admission to the bar, he bade 



KOBEET II. ADAMS. 25 

farewell to his native valley, and made his residence in East 
Tennessee, where he entered upon the practice of his profession ; 
here he soon commanded notice and patronage, and rose rapidly 
in his profession ; yet his aspirations were not satisfied, and the 
prospects of the rich harvest of litigation which the Western 
Territories then presented seemed to offer the field he desired ; 
hither he removed, and estahlished his office in the city of 
Natchez, where he at once entered npon a career brilliant 
and ai'duous. 

Natchez at this time was noted for the legal ability that 
adorned its bar ; but Mr. Adams was equal to the severe test 
which a claim to superiority demanded, and was soon recognized 
as one of the most skilful and logical as well as most learned 
advocates at that bar of eminence. While he was deficient in 
general learning, his vigorous mind grasped and embraced the 
subtleties of the law with an alacrity and comprehension that 
impressed his opponents with surprise, the court and bar with 
admiration, and his hearers with a conviction of his superiority.^ 

Mr, Adams possessed in a high degree that versatility of ex- 
citation which can awaken at pleasure the feelings of sympathy 
and abhorrence. He could recount the tales of sorrow and mis- 
fortune with a pathos that Would moisten the eyes of all hearers, 
thrill at one moment the tenderest cords of the heart, and at 
the next, twang the arrows of indignation and scorn ; while he 
could pour forth the melting strains of commiseration, he could, 
when necessary, hurl the awakening thunders of wrath and ven- 
geance until the culprit would writhe in the agonies of con- 
scious guilt. 

Plis mind was always clear and ready, and so plain were his 
statements of facts, so lucid his presentations of the law, that 
no ingenuity of argument, no skill of abstraction, could pervert 
their meaning or obscure his position. 

Mr. Adams possessed a warm and sympathetic heart, and was 
a general favorite among the people. He was elected, in 1S30, 
to the United States Senate in the place of Mr. Reed, who died 
the year preceding. Here the prospects of Mr. Adams were 
brilliant in the highest degree, and his learning, eloquence, and 
winning address, would, no doubt, have gained for him a national 



26 BENCH AND BAR OF MISSISSIPPI. 

fame had not tlie untimely hand of death checked liis marvellous 
career. He died in a short time after his election to the Senate, 
])elo7ed by all who knew him, leaving a multitude of friends, 
and not an enemy. 



LYMAN HARDING. 

Lyman Harding, the tirst Attorney-General of the State of 
Mississippi, was a native of Massachusetts. Having received a 
good education, he emigrated at an early age to the State of 
Maryland and engaged in teaching a country school ; but, like 
most young men of talent and resolution, he desired a sphere 
more flattering to his ambition and more congenial to his high 
resolves, and, turning his attention to the study of law, he pre- 
pared himself for the bar while pursuing the vocation of a teach- 
er. In this occupation he was engaged during several years, 
at the expiration of which, having obtained license to practice 
his chosen profession, he determined to seek his fortune in the 
South-west, and, making his way on foot to the city of Pitts- 
l)urg, he descended the Ohio on a flat-boat to Louisville, and 
there opened a law office. But the circumstances of his first 
efforts were unpropitious, and, his means being exhausted, he 
again boarded a flat-boat and worked his passage as a laborer to 
Natchez, where he arrived soon after the establishment of the 
Territorial Government. Here he found a brisk and stirring 
arena, occasioned by the mixed tide of immigration which was at 
that time flowing from all parts of the country to the rich soil 
of the new Territory, and, amid the consequent speculation in 
lands and mercantile thrift, the legal attainments of Mr. Hard- 
ing were soon called into requisition, and he immediately entered 
upon a thriving practice. 

He possessed much of that shrewdness and acute insight in 
the chances of profit characteristic of his nativity, and soon ac- 
cumulated a considerable fortune. Bold, talented, and ener- 
getic, his qualifications were well adapted to his professional 
requirements, and it was not long before he enjoyed the most 
lucrative practice in the Territory. He had no political am- 



GEORGE POmDEXTER. 27 

bition, and devoted all his energies to his profession ; but his 
learning and vigorous habits could not escape the public demand 
for his services, and, on the organization of the State Govern- 
ment, he was elected Attorney-General. 

In this capacity, besides his duties before the Supreme Court, 
he vt^as required to attend the sessions of the Legislature, to 
give his opinions as to the constitutionality of its acts, and, 
when required, to draw bills for the members. His salary was 
fixed at one thousand dollars, and seven dollars per day in ad- 
dition were allowed him for every day of his attendance upon the 
Legislature. He was also required to attend the courts in the 
first and second judicial districts. 

But the ability of Mr. Harding was equal to the multiplicity 
of his duties, and he maintained the character of being an effi- 
cient officer, and held a high rank at the bar to the time of his 
death, which occurred in 1820. 



GEORGE POINDEXTER. 

When Demosthenes was asked, on one occasion, what was the 
chief ingredient of eloquence, he replied, " Action" ; but he did 
not mean by this the mere gestures of the body, or theatric 
ujotions of the limbs ; he meant that action which involves the 
practice of the principles we advocate, which not only indicates 
the sentiment that inspires eloquence, but impresses it into a rule 
of conduct — an incentive to achievement, a passion for doing. 
For eloquence and action have their origin in the same source, 
and, as a general thing, that which inspires eloquence is also an 
incentive to action. The man who can discourse eloquently and 
effectively upon the subject of charity must be a liberal man. 
Re who can rise to the height of the subject, and picture the 
sunny features of liberty must be a free man ; and he who can 
pluck its colors and stamp them in the language of thrilling in- 
centive must be a patriotic man. 

" The highest order of eloquence," says Mr. Blair, "is al- 
ways the offspring of passion. A man may persuade others 
to act, by mere reason and argument ; but that degree of elo- 



28 BENCH AND BAR OF MISSISSIPPI. 

quencc which gains the admiration of mankind, and properly 
constitutes an orator, is never found without warmth or passion. 
Passion, when in such degree as to arouse and enkindle the mind 
without throwing it out of the possession of itself, is universally 
found to exalt all the human powers. It renders the mind in- 
finitely more enlightened, more penetrating, more vigorous and 
masterly, than in its calmer moments. A man actuated by a 
strong ])assion becomes much greater than he is at other times ; 
he is conscious of more strength and force, he utters greater 
sentiments, conceives higher designs, and executes them with a 
boldness and felicity of which, on other occasions, he would 
think himself utterly incapable." 

If such be the effects of occasional exhibitions of passion, we 
niust attribute the constant capacity for eloquence to some con- 
stant and sempiternal influence, some ruling and ever-present 
motive. This motive may be, as it often is, a selfish ambition, 
or a desire of applause, or it may arise from the softer emotions 
of the heart, or from a spirit of pure patriotism, in which are 
blended all the noblest sentiments of humanity. To this last we 
have no hesitancy in ascribing those constant and wonderful 
powers of eloquence which characterized the subject of this 
sketch. 

George Poindexter, one of the proudest and brightest names 
in the annals of Mississippi, was a native of Yirginia, and 
sprang from a large and influential family in that State. I have 
been able to ascertain but little in regard to his early life ; but 
he must have liad the advantages of a finished education. He 
made his appearance in Mississippi soon after the organization of 
the Territorial Government, where his rare genius and ability 
were soon recognized ; and we find him a member of the Terri- 
torial Assembly as early as 1805, in which he assumed and held 
a leading and influential position until the year 1807, when he 
was elected to represent the Territory in the Congress of the 
United States. 

The following is his reply to the committee informing him of 
hie election : 

'' Gentlemen : I receive, with emotions of gratitude and re- 
spect, the notification of my election as the delegate from this 



GEORGE POmDEXTER. 29 

Territory to the Congress of the United States. After a resi- 
dence among you of several years, during which time I have been 
principally engaged in the public service, nothing could contrib- 
ute more to my gratification than the sanction of the enlight- 
ened representatives of that community whose welfare has, in 
part, been committed to my care and management. 

" The task assigned me is indeed an arduous one : various re- 
flections lead to a conviction that it may become still more im- 
portant and difficult, and I almost despair of meeting the just 
expectations of the people whose interest I am deputed to rep- 
resent ; but whatever of talents, whatever of information or 
industry I may possess, shall not fail to be called forth in pro- 
moting the advancement of our common prosperity and inde- 
pendence. 

" Accept, gentlemen, for yourselves and both Houses of the 
General Assembly, my warmest acknowledgments for the high 
confidence you have conferred on me, and the assurances of my 
best wishes for your individual happiness. 

"Geo. Poindexter. " 

The course of Mr. Poindexter as the representative of che 
Territory in the Congress of the United States was marked at 
once with the utmost fidelity to the interest of his constituents, 
and with an ability that attracted the admiration of that body 
and the attention of the country ; and to him was due, for the 
most part, that legislation, both at home and in Congress, which 
was so favorable to the progress of the Territory and the devel- 
opment of its resources ; to the establishment of a healthy ju- 
risprudence, and the advancement of every interest. 

On the expiration of his career in Congress as the delegate 
from the Mississippi Territory, Mr. Poindexter resumed his 
practice of law, but in 1813 he was commissioned by the Presi- 
dent of the United States as one of the judges of the Superior 
Court of the Territory ; and, in 1817, we find him an active 
and leading member of the convention for the organization of 
the State Government. He was chairman of the committee ap- 
pointed to draft a form of government and constitution for the 
new State, and to him we are, in a great measure, indebted for 



30 BENCH AND BAK OF MISSISSIPPI. 

that admirable charter under which our State was launched 
upon its brilliant career of sovereignty. 

On the organization of the State Government in 1817, Mr. 
Poindexter was again chosen as the representative of his people 
in the national Congress, to which, returning with a riper expe- 
rience in the art of government, he entered upon a career as 
remarkable as it was brilliant and admirable. 

In 1819, he delivered in the House of Representatives his 
celebrated speech on the Seminole War. Tkis speech was 
evoked by the introduction of a resolution censuring General 
Jackson for causing the execution of the noted incendiaries and 
instigators of the war, Arbutlmot and Ambrister ; for his seizure 
of the Spanish posts of St. Marks and Pensacola and Fortress 
Barancas, which acts were alleged to have been done in violation 
of the law of nations and the express commands of the Presi- 
dent of the United States. 

Mr. Poindexter, after a comprehensive review of the natnre, 
origin, and progress of the war, and a most masterly and elo- 
quent vindication of the conduct of General Jackson, closed this 
speech with a peroration which fell like a thunderbolt upon the 
enemies of the noble old chief, and like an electric spark upon 
the patriotic spirit of the country. The conduct of General 
Jackson was vindicated and approved, and the machinations of 
his opponents brought to confusion and shame. This sj)eech 
was highly commended by the press of the period. It stamped 
Mr. Poindexter as one of the most accomplished and eloquent 
orators in the national House of Representatives, and gave him 
/ a just title to that splendid fee of fame which he afterward en- 
joyed. This speech is introduced in full in connection with this 
sketch. 

In November, 1819, and before the expiration of his term in 
the national House of Representatives, Mr. Poindexter was 
elected Governor of Mississippi, and entered upon the duties of 
that office on the 5th of January, 1820. In his message of that 
date to the Legislature he said ; " There can be nothing more 
dear to the heart of the patriot than the prosperity, the honor, 
and glory of liis country ; and no reward for sacrifice incurred 
in the discharge of duties necessary to the attainment of these 



GEOEGE POINDEXTER. ?>1 

great objects is more precious than tlie smiles of an approving 
conscience and the nnbought plaudits of an enlightened people. 
To merit the former is the full measure of my ambition, and to 
receive the latter is a solace which consummates all my wishes. " 
At the expiration of his term as Governor of the State, Mr 
Poindexter again retired to private life and devoted himself tc 
the practice of his profession ; but while he was yet Governor, 
the Legislature passed an act authorizing and requesting him to 
revise and amend the statutes of the State. This duty he per- 
formed in a most able and satisfactory manner, and in 1822, iiis 
code was completed, and established as the law of the State ; 
and the Legislature, by a joint resolution of June 29th of that 
year, tendered to him the gratitude of the State for the fidelity 
and ability with which he had accomplished the task, and pre- 
sented him with an elegant copy of the Encyclopfedia. 

In November, 1830, he was again called from his professional 
vocation, and elected by the Legislature of Mississippi to a seat 
in the United States Senate. In this position he manifested 
those increased abilities which experience engenders, and to the 
exercise of which this enlarged sphere gave plentiful scope. 
Mr. Poindexter had an exalted idea of American liberty, of 
the rights of the States, and of the people. He was extremely 
jealous of the least exercise of unwarranted power by Congress, 
or by either branch of the General Government. He was a 
strict constructionist of the Constitution and spirit of our Gov- 
ernment, and though he had so ably and vehemently defended 
General Jackson in the House of Representatives ten years be- 
fore, yet, when on the occasion of a resolution of censure, in 
1834, President Jackson sent to the Senate his memorable pro- 
test, and M^hich, as Mr. Poindexter conceived, was not couched 
in the language of courtesy and respect, he immediately as- 
sailed it as a breach of privilege. 

He said : " I will not dignify this paper by considering it in 
the light of an Executive message : it is no such thing. I re- 
gard it simply as a paper with the signature of Andrew Jack- 
son ; and should the Senate refuse to receive it, it will not be 
the first paper with the same signature which has been refused 
a hearing in this body, on the ground of the abusive and vitu- 



82 BENCH AND BAR OF MISSISSIPPI. 

perative language which it contained. This effort to denounce 
and overawe the deliberations of the Senate may properly be re- 
o-arded as capping the climax of that systematic plan of opera- 
tions which has for several years been in progress, designed to 
l)ring this body into disrepute among the people, and thereby 
remove the only existing barrier to the arbitrary encroachments 
and usurpations of Executive power." 

Mr. Poindexter retired from the Senate in 1836, now full of 
years, and crowned with the laurels of a brilliant, useful, and 
exemplary life. 

We have traced this remarkable man through his long 
and eminent career of public benefaction ; let us now notice 
some of those traits of character that achieved for him so much 
success. 

Mr. Poindexter was a profound lawyer, notwithstanding his 
varied and almost constant public services : his early preparation, 
his genius, and assiduity, had enabled him to acquire a mastery 
of the science of jurisprudence. He was an impressive and 
eloquent speaker, but his eloquence was more like a torrent that 
sweeps everything before it, than that Ciceronian gentleness that 
glides upon the waves of conciliation. Mr. Poindexter was 
fond of the argumentum ad hominem • he did not depend so 
much upon the fickle wand of suasion as upon the rod of rea- 
son : he gained the citadel of conviction by storm, direct, and 
full in front, rather than by the crouching mano3uvres and cir- 
cuitous paths of allurement. He possessed a keen sense of 
honor, and was ojDen and generous in all his dealings ; punctil- 
ious in the discharge of his public duties, and resolute in the 
prosecution of every undertaking. He was all that Horace 
meant by his ^^ Justus et tenax jpropositi vir.''"' 

But, above all, was his lofty spirit of patriotism. He was 
proud of his country, and loved his adopted State with an ardor 
that aroused his genius and kindled the fires of his soul. While 
he lacked, perhaps, that gloss and meteoric flash Avliich charac- 
terized the eloquence of Curran and Prentiss, he possessed in a 
high degree that steady glow of genius and that power of apt- 
ness and elegance which gave lustre to the discourses of Pitt 
and "Webster. 



GEORGE POINDEXTER. 33 

Mr. Poindexter was engaged at tlie bar in most of the noted 
cases of Lis time in the Territory, and always fully met the 
apprehensions of his opponents and the expectations of his 
friends, with increased distinction. 

It fell to his lot, in the early part of his career, to prosecute 
the famous Aaron Bm-r, who, while making his fii*st desceriFfo 
ISew Orleans; was arrested at Natchez and subjected to a judi- 
cial examination in the neighboring town of Washington, then 
the seat of the Territorial Government. Mr. Poindexter con- 
ducted this prosecution with energy and ability ; but Mr. Purr 
liad many powerful friends in the vicinity—men of wealth and 
influence — who came to his rescue, and in consequence, notwith- 
standing the strenuous efforts of Mr. Poindexter, he was acquit- 
ted. But, no doubt, the distinguished prisoner was no less sur- 
prised than chagrined to find his ^^lans penetrated by the eye of 
scrutiny, and disclosed by the tongue of eloquence, on the part 
of a young Territorial lawyer on the banks of the Missis- 
sippi. 

Mr. Poindexter was a stanch advocate of popular educa- 
tion : he fully comprehended and appreciated the fact that a \ 
l)eople to be free must have a knowledge of their rights and the 
duties they owe to society. In his message to the Legislature 
in 1820, he said : 

" Before the august and overwhelming tribunal of a nation of 
freemen, whose minds have been reared and nurtured into full 
maturity under the beni2:n influence of institutions recoofnizins: 
the unrestrained toleration of religious and political opinions, 
and embracing the wide range of human rights, limited only 
by the condition of society, tyranny and bigotry stand appalled, 
and sink beneath the weight of reason. 

'■' Our forms of government rest on the virtue and intelli- 
gence of the people, without which they will tunible into one 
general heap of irretrievable ruins. 

" The avenues to education and kuowledge ought to be made 
accessible to every youth, without distinction of rank. From 
the humble cottage surrounded by penury and want the bright- 
est luminaries of intellect and virtue often burst forth, and the 
hero or the statesman is seen, rising from obscurity, to add 
3 



34 BEKCH AND BAR OF MISSISSIPPI. 

honor and renown to liis country, and adorn tlie j^ages of its 
history. ' ' 

Mr. Poindexter did much toward the establishment of a sound 
and expeditious system of jurisprudence in Mississippi, and it 
was the vivid picture he presented, in his message of 1821, of 
the evils attending a combination of the common-law and chan- 
cery coui'ts, that induced the Legislature at that session to 
establish a separate chancery jurisdiction in the State. 

"The establishment," said he, "of a rule of conduct and 
system of judicature that will bind society together, and wdiich, 
with adequate penalties for every infraction of the public tran- 
quillity, will furnish a certain and speedy redress of private 
wrongs, that will protect the weak from oj)pression and the 
virtuous from the snares and encroachments of the vicious, call 
for the best energies of the human mind, and should engage 
the attention of philanthropists and statesmen in every quarter 
of the civilized world." 

Such were the utterances of one whose character I have thus 
feebly attempted to depict — a character of which the pen of a 
Thucydides, a Channing, or an Irving might tremble and 
grow dry in the effort of portrayal — a man whose biography is 
written in the laws and jurisprudence of his country, and whose 
epitaph is inscribed upon the proud monument of Mississippi, 

SPEECH OX THE SEMINOLE WAR, 1819. 

The House being in Committee of the Whole on the resolu- 
tions censuring General Jackson for his conduct of the war, 
Mr. Poindexter addressed the Chair as folloM's : 

" I rise, Mr. Chairman, under the influence of i^eculiar sen- 
sibility, to offer my sentiments on the subject before the com- 
mittee. We are called upon to disrobe a veteran soldier of the 
well-earned laurels which encircle his brow, to tarnish his fame 
by severe reproaches, and hand down his name to postcn-ity as 
the violator of the sacred instimnent which constitutes the char- 
ter of our liberties, and of the benevolent dictates of humanity by 
which this nation has ever been characterized and distinguished. 
Were the sacrifice of this highly meritorious citizen the only evil 



GEOEGE POINDEXTER. 85 

with which the proposed resolutions are fraught, I should de- 
rive some consolation from the reflection that there is a redeem- 
ing spirit in the intelligence and patriotism of the great body of 
the people, capable of shielding him against the deleterious con- 
sequences meditated by the proposition on your table. But there 
is another and a more serious aspect in which the adoption of 
these resolutions must be viewed : the direct and infalHble ten- 
dency which they involve, of enfeebling the arm of this Govern- 
ment in our pending negotiation with Spain ; of putting our- 
selves in the wrong and the Spanish monarch in the right, on 
the interesting and delicate points which have so long agitated 
and endangered the peace of the two countries. I wish not to 
be understood as attributing to honorable gentlemen who advo- 
cate the measure such motives ; they are, doubtless, actuated 
alone by a sense of duty. I speak of the effects which our pi-o- 
ceedings are calculated to produce, without intending to cast the 
slightest imputation on those who entertain different opinions. 

" Sir, do we not know with what satisfaction the minister of 
Spain looks on the efforts which are made on this floor to incul- 
pate the Executive of the United States, for having committed 
against his immaculate lU'dster an act of hostility, in the entrance 
into Florida, and the temporary occupation of St. Marks and 
Pensacola ? With what avidity and pleasure he perused the 
able and eloquent arguments, delivered in the popular branch of 
the Government, in support of the mighty allegations which he 
has already exhibited of the hostile and unwarrantable conduct 
of the commander of our army during the late camj^aign against 
the Seminole Indians ? And, sir, whatever may be the i3urity 
of intention, which I shall not presume to question, on the part 
of gentlemen who censure the course j)ui'sued by the command- 
ing general, this debate will afford a valuable fund on which 
Spain will not fail to draw, on all future occasions, to show that 
the pacific relations which she has endeavored to maintain have 
been violated without any adequate cause by the United States. 
Shall we put it in her power to make this declaration to the 
civilized world, and establish the fact by a reference to the 
journal of the Ilouse of Representatives ? I hope and believe 
we shall not. 



36 BENCH AND BAK OF MISSISSIPPI. 

" Sir, the nature of our free institutions iinj)erious]y requires 
that, on all questions touching controversies with foreign pow- 
ers, every department of this Government should act in con- 
cert, and present to the opposite party one undivided, impene- 
trable front. The observance of this accords with every dictate 
of patriotism, and is the basis on whicli alone we can preserve 
a proper respect for our rights among the great family of na- 
tions. Internal divisions are often fatal to the liberties of the 
people ; they never fail to inflict a deep wound upon the na- 
tional character, the lustre and purity of which it is our pri- 
mary duty to preserve unsullied to the latest posterity. 

" Can it be necessary to call to the recollection of the com- 
mittee the peculiar and delicate posture of our relations with 
Spain ? A protracted and difficult negotiation, on the subject 
of boundary and spoliations, is still progressing between the Sec- 
retary of State and its accredited minister at this place ; the 
result is yet extremely doubtful ; it may, and I trust will, 
eventuate in a treaty satisfactory to the parties on all the points 
in contest ; but if Spain should continue to reject the moderate 
and reasonable demands of this Government, the indisputable 
rights of this nation must and will be asserted and vindicated by 
a solemn appeal to arms. I ask if, in such a crisis, it is either 
wise or prudent to pronounce, in the face of the world, that we 
have been the aggressors, and that war in its mo?it offensive 
and exceptionable sense has been already commenced by Gen- 
eral Jackson, under the sanction of the President of the tJnited 
States ? I hazard nothing in affirming that such a departure 
from the established usages of nations is without a parallel in 
the political history of any country, ancient or modern. Under 
whatever circumstances danger may threaten us from abroad, it 
is from this House that the energies of the people are to be 
aroused and put in motion ; it is our province to sound the 
alarm, and give the impulse which stimulates every portion of 
the Ilnioii to a simultaneous and manly exertion of its physical 
strength, to avenge the insulted honor and violated interests of 
our country. We are the legitimate organ of public sentiment, 
and it is incumbent on us to animate and cherish a sjjirit of re- 
sistance to foreign encroachments among our constituents, by 



GEORGE POINDEXTER. 37 

urging the justice of our cause, and the necessity of their vig- 
orous co-operation in support of the constituted authorities, who 
are resj)onsible to them for the faithful execution of the higli 
and important duties with which tliej are entrusted. Tliese are 
the means by whicli we sliall perpetuate our republican form of 
government, and transmit its blessings to future generations. 

" But we are required on the present occasion to forget the 
wrongs of which we have so long and so justly complained ; to 
abandon for a while the lofty attitude of patriotism, and to 
tell the American people, in anticij)ation of a rupture with 
Spain, that it is a war of aggression on the j)art of their chief 
executive magistrate, commenced in Florida without proper au- 
thority ; that the Spanish Government can consider it in no 
other light than premeditated, offensive war, made on them 
with a view of extending the teri'itorial limits of the United 
States. The expression of these opinions, by this body, must 
cast a shade over the American name which no lapse of time 
can obliterate ; and while we nerve the arm of the enemy, we 
shall approach the contest with an open denunciation against 
the President, who is charged with its prosecution to a speedy 
and favorable termination. He is denied the cheering conso- 
lation of tinion in the government over which he has been 
called to preside, at a period of national peri], when every man 
ought to be invited to rally around the standard of his country. 

" Sir, how is this most novel and extraordinary aberration 
from the legislative functions of the House attempted to be ex- 
jDlained and justified ? By gloomy pictures of a violated consti- 
tution, pathetic appeals to humanity in favor of a barbarous 
and unrelenting foe, and lamentations over the blighted honor 
and magnanimity of the nation. T, too, am a conservator of the 
Constitution ; 1 venerate that stupendous fabric of human wis- 
dom ; I love my country, and will endeavor to rescue it from 
the odious imputations which have been so freely cast on it in 
the progress of this discussion. I admonish gentlemen, who 
manifest such ardent zeal to fortify the powers of this House 
against military usurpations, that they do not suffer that zeal to 
precipitate them into an error equally repugnant to a sound con- 
struction of the Constitution. 



38 BENCH AND BAR OF MISSISSIPPI. 

" The report of the Committee on Mihtaiy Affairs, taken in 
connection with the amendment proposed bj the honorable mem- 
ber from Georgia (Mr. Cobb), may be classed under two general 
divisions : 1st, Resolutions of censure on the conduct of Gen- 
eral Jackson in Florida for a violation of the orders of the 
President, and of the Constitution, and for the unlawful execu- 
tion of the incendiaries, Arbuthnot and Ambrister, 2d, In- 
structions to the committee to prepare and report two several 
l)ills, the object of which is to divest this nation of some of the 
most essential attributes of sovereignty. I shall pass over the 
latter branch of this subject without observation, beheving, as I 
do, notwithstanding the high respect which I entertain for the 
mover, that it is not seriously the intention of honorable gentle- 
men by an act of legislation to abrogate the rights of this nation, 
founded on the universal law of nature and of nations. Self- 
denial, though sometimes an amiable quality in an individual 
member of society, when applied to the w^liole community ren- 
ders it obnoxious to insult and oppression, and is a voluntary 
degradation below the rank of other sovereignties, to which no 
American ought to submit. Neutral rights and the usages of 
war are already well established and understood by all civilized 
powers ; and it is not to be 23resumed that the interpolations 
which are proposed would be reciprocal and become the basis 
of new principles of public law. We may prostrate our own 
dignity, and paralyze the energies of our country, but shall find 
no nation so pusillanimous as to follow our disinterested ex- 
ample. Considering, therefore, these propositions as merely 
nominal, intended only to enlarge the group and give diversity 
to the picture, I shall leave them without further animadver- 
sion, and proceed to investigate the resolutions levelled at the 
fame, the honor, and the reputation of General Andrew Jack- 
son ; and, through him, at the President, under whose orders 
he acted, and by whom he has been sustained and vindicated. 

" I hold it to be the indispensable duty of every tribunal, 
whether legislative or judicial, to examine wnth caution and cir- 
cumspection into its jurisdiction and powers, on every question 
brought before it for adjudication ; and- this rule ought more 
particularly to be observed in cases involving personal rights and 



GEOKGE POINDEXTER. 39 

interest, where the party to be affected by the decision is not 
permitted to answer in liis own defence. I ask, then, sir, Has 
the House of Representatives, as a distinct and separate branch 
of Congress, the constitutional power to institute an inquiry into 
the conduct of a military officer, and to sentence him to be cash- 
iered, suspended, or censured ? I demand a satisfactory and 
explicit response to this interrogatory, founded on a reference 
to the Constitution itself, and not on the undefined notions of 
expediency in which gentlemen may indulge ; and if it be not 
given, as I am very sure it cannot, ive shall become the vio- 
lators of that fair fabric of liberty, and erect a precedent more 
dangerous in its tendency than the multiplied infractions which 
have been so vehemently alleged against General Jackson, ad- 
mitting them all the force and latitude which the most enthu- 
siastic censor could desire. 

" Sir, it is high time to bring back this debate to first jjrinci- 
ples, and to test our jurisdiction over this case by a recurrence 
to the structure of the government of which we are a compo- 
nent part. Let us pluck the beam from our own eyos before we 
seek to expel the mote which gentlemen seem to have dis- 
covered in the vision of General Jackson. The sages and pa- 
triots who established the foundation of the republic have, 
with a wisdom and forecast bordering on inspiration, carefully 
marked and distributed the powers delegated in the Constitution 
to the Federal Government among the several departments, leg- 
islative, executive, and judiciary. No principle is better settled 
or more generally conceded than that the powers properly 
belonging to one of these departments ought not to be di- 
rectly administered by either of the others. The violation of 
this maxim leads, by inevitable results, to the downfall of 
our republican institutions and the consolidation of all powers 
in that branch which shall possess the strongest influence over 
the public mind. Upon the independent exercise of the powers 
confided to each department, uncontrolled, directly or indirectly, 
1'-- the encroachments of either, dejoends the security of life, 
liberty, and property, and the stability of that Constitution 
which is the pride of our country and the admiration of man- 
kind. 



40 BENCH AND BAR OF MISSISSIPPI. 

' ' The honorable gentleman from Georgia has adverted to the 
opinions of tlie immortal author of the letters of Publius, the 
late Chief Magistrate of the United States ; and the honorable 
Speaker has also invited our attention to that great constitutional 
lawyer. They triumphantly ask, What would he say on the 
present question, were he a member of this House ? I will not 
follow the example of these gentlemen by substituting declama- 
tion for historical truth, or vague surmises and assumed prem- 
ises for record evidence ; but while I accord to the distin- 
guished statesman and patriot, whose exertions so eminently con- 
tributed to the establishment, and whose exposition of its fun- 
damental principles cannot be too highly appreciated. All the 
merit of his useful life was devoted to the public service, 
guided by wisdom, virtue, and integrity ; and I appeal with 
pleasure and confidence to his able pen, in support of the posi- 
tion which I have advanced, and which I deem an important 
point in the case under consideration. In the view taken by 
Mr. Madison of the ' meaning of the maxim which requires a 
separation of the de[jartments of power,' he repels the argu- 
ment of the opponents to the adoption of the Constitution, 
founded on the apprehension of executive supremacy over the 
legislative and judiciary, which, it was contended, would ulti- 
mately render that branch the sole depository of i:>ower^ and 
subject tlie people of this country to the despotic will of a 
single individual. Comparing the powers delegated to the ex- 
ecutive with those granted to the legislature, and the probable 
danger of an assumption by either of the functions appertain- 
ing to the other, he says : ' In a government where numerous 
and extensive prerogatives are placed in the hands of a he- 
reditary monarch, the executive department is very justlv re- 
garded as the source of danger, and watched with all the jeal- 
ousy which a zeal for liberty ought to inspire. In a democracy, 
where a multitude of people exercise in person the legislative 
functions, and are continually exposed, by their incapacity for 
regular deliberation and concerted measures, to the ambitious 
intrigues of their executive magistrates, tyranny nuiy well be 
apprehended, on some favorable emergency, to start up in the 
same quarter. But in a representative republic, where the 



GEOEGE POINDEXTER. 41 

executive magistracy is carefully limited, both in the extent and 
duration of its power, and where the legislative power is exer- 
cised by an assembly, which is inspired, by a supposed influence 
over the people, with intrepid confidence in its own strength, 
which is sufficiently numerous to feel all the passions which ac- 
tuate a multitude, yet not so numerous as to be pursuing the 
objects of its passions by means which reason prescribes ; it is 
against the enterprising ambition of this department that the 
people ought to indulge all their jealousy^ and exhaust all their 
precautions. 

" ' The legislative department derives a sup3riority in our 
government from other circumstances. Its constitutional powers 
being at once more extensive, and less susceptible of precise 
limits, it can, with the greatest facility, mask, under com- 
plicated and indirect measures, the encroachments which it 
makes on the co-ordinate departments.' 

" The correctness of the reasoning and predictions of this 
great and good man, who is called by the honorable Speaker the 
Father of the Constitution, has been often demonstrated in the 
practical operations of this body, and never more forcibly than 
on the present occasion. Scarcely a session of Congress passes 
without some effort to enlarge the scope of our powers, by con- 
struction or analogy ; and unless these systematic advances in 
this House to crush the co-ordinate departments, by an un- 
limited exercise of authority over all subjects involving the gen- 
eral welfare, be resisted with firmness and perseverance, they 
will, at no distant period, eventuate in the destruction of those 
salutary checks and balances so essential to the duration of onr 
happily-formed government, and to the security of civil and 
political liberty. I deprecate e\^ery measure calculated to es- 
tablish a ])recedent which, in its effects, may lead to such dan- 
gerous consequences. An enlightened statesman has said that 
the concentrating of all the powers of government in the legis- 
lativ^e body is of the very essence of despotism ; and it is no al- 
leviation that these powers will be exercised by a plurality of 
hands and not by a single one. 

" An elective despotism was not the government we fought 
for ; but one which should not only be founded on free princi- 



42 BENCH AND BAR OF MISSISSIPPI. 

pies, but in whicli tlie powers of sovereignty should be so divid- 
ed and balanced among the several bodies of magistracy as that 
no one could transcend its legal limits without being effectually 
checked and restrained by the others. 

" Sir, whenever these principles shall cease to be respected by 
the councils of this country, I shall consider the grand experi- 
ment which we have made in the administration of a govern- 
ment of limited powers, founded on a written instrument, in 
which they are specified and defined, as altogether abortive 
and as forming strong proof of the regal maxim, that man is 
incapable of self-government. If honorable gentlemen mean 
anything by the reverence which they profess to feel for the 
Constitution, I conjure them to look to its provisions, and for- 
bear to adopt a measure in direct violation both of its letter and 
spirit. By Article II., Section 2, it is provided that ' The 
President shall be commander-in-chief of the army and navy of 
the United States, and of the militia of the several States when 
(jailed into actual service ' ; and by the 9th article of the 1st sec- 
tion Congress is vested with power to ' make rules for the gov- 
ernment and regulation of the land and naval forces.' Congress 
has long since fulfilled this duty : rules and articles of war have 
been sanctioned, and have continued to govern the army, from 
its organization up to the present time ; in tliese the great prin- 
ciples of subordination and responsibility are graduated and es- 
tablished, from the commander-in-chief down to the most petty 
officer and common soldier. The President is placed by his 
country at the head of its physical force, ' to execute the laws of 
the Union, suppress insurrection, and repel invasion.' He is 
the ultimate tribunal to decide all questions touching the opera- 
tions of the army, and the conduct of the officers who compose it. 
If there^be any power, clearly and exclusively belonging to the 
Executive, it is that which pertains to the command of the 
army and navy of the United States. Our whole system of 
laws recognizes it, and until this extraordinary attempt to erect 
the House of Ro^^resentatives into a court-martial, with a view 
to cast an indelible stain on the character of General Jackson, 
without a fair and impartial trial, in v/hich he might confront 
liis accusers and be heard in his defence, no instance can be 



GEOKGE POINDEXTER. 43 

shown, since the' foundation of the Government, wliere the 
President has been interrupted in the full exercise of his legiti- 
mate authority over the military officers under his command. 
The abuse of this power, or the improper direction and applica- 
tion of the public force, by the Chief Magistrate, or by any sub- 
ordir\jate officer with his privity and assent, in a manner or for 
the accomplishment of objects dangerous to the liberties of the 
people OT subversive of the laws and Constitution of the Union, 
will find a ready and suitable corrective in this Plouse, by an 
application of its power to originate impeachments against the 
President, Yice- President, and all civil officers, for treason, 
bribery, or other high crimes and misdemeanors. In this sense 
only can we be regarded as the grand inquest of the nation, and 
not to the unlimited extent for which gentlemen have con- 
tended. The power to impeach the President is expressly dele- 
gated ; all other officers are liable to the same scrutiny ; and the 
total omission, in the article of the military department, is, to 
my mind, conclusive evidence that they were never intended to 
be subject to the control of Congress, except in the usual course 
of legislation, under the power to raise and support armies. 
And this opinion is strengthened by the clause of the Constitu- 
tion directing Congress to provide for the government and regu- 
lation of the land and naval forces. The principle of official 
responsibility is to be found in every page of the Constitution : 
not a vague, uncertain responsibility, but that which is unequiv- 
ocal, certain, and definite. We are answerable, at stated pe- 
riods, to the people, by wdiom we have respectively been 
chosen. The President is accountable to the nation at laree, at 
the expiration of his term of service ; and in the mean time 
we hold a salutary check over his ambition, if he evince such a 
disposition, by means of impeachment ; in like manner the 
whole civil department may be punished for a wanton prostitu- 
tion of their official functions. The military and naval officers 
who command our army and navy are responsible directly to the 
Executive, Avho is their chief, and, through him, indirectly to 
the representatives of the people. Every link in the chain is 
essential to the beauty and symmetry of the whole ; and, if 
preserved unbroken, affords the most ample security against 



44 BENCH AND BAR OF MISSISSIPPI. 

any usurpation of power, without a prompt and efficient 
remedy to detect and restrain it. 

It is now proposed to make this House tlie focus of every 
power granted to the Federal Government ; to mount the ram- 
parts whicli separate the departments, and compel every man 
who holds a commission to bow submissively to the gigantic 
strength of this numerous assembly. Those whom we cannot 
impeach we will censure, and record their names as lit objects 
for the scorn and detestation of posterity. Already we hold the 
purse and the sword of the nation. All legislation must receive 
our concurrence, in connection with the President and Senate, 
before it has the force and effect of law. The treaty-making 
power may be controlled by us, wdiere an appropriation is re- 
quired to fulfil the contract ; the judiciary is at our feet, both in 
respect to the extent of its jurisdiction and the liability of its 
members to the summary process of impeachment ; the Presi- 
dent and heads of department, foreign ministers, and the whole 
catalogue of civil officers, stand in awe of our frowns, and may 
be crushed by the weight of our authority. I ask, then, sir, if 
the officers of the army and navy are rendered subservient to 
us, as a censorial, inquisitorial body, whether it will not amount 
to the ' x'ery definition of despotism.' Yes, sir, we shall, if 
these resolutions pass, bear testimony of the soundness of the 
political axiom, that it is ' against this department that the 
people ought to indulge all their jealousy, and exhaust all their 
precautions.' But the Constitution, in this respect, has received 
a construction almost contemporaneously with its adoption. As 
early as the year 17J;>2 a resolution was submitted, by a distin- 
guished member from Virginia in the House of Representa- 
tives, reqiiestimj the President to institute an inquiry into the 
causes of the defeat of the army under the command of Major- 
General St. Clair. The agitation produced by that momentous 
disaster seemed to demand an investigation of the conduct of 
the commanding general. A great public calamity is always 
calculated to awaken feelings which, for a moment, usurj) the 
empire of reason, and lead to excesses which sober reflection 
would condemn. It was not, therefore, wonderful that a man 
of the soundest intellect and most enlightened understanding 



GEORGE POINDEXTER. 45 

should have felt it his duty to call the attention of the Presi- 
dent to a subject so deeply interesting to the country, and to 
reqxtest an inquiry into the- causes of that signal and unfortu- 
nate defeat. The proposition was fully discussed, and finally 
rejected by a large majority, on the ground that it was an un- 
warrantable interference with the constitutional functions of the 
Chief Magistrate. The substance of the debate may be found in 
the newspapers of that day ; and among those who objected to 
the measure are the names of Madison, Ames, Baldwin, and 
many others who j)articipated in the formation of the Constitu- 
tion, and who were, consequently, better qualified to give to it 
a sound interpretation. A. committee was subsequently ap- 
pointed to inquire into the expenditure of the public money in 
that campaign, and other subjects of a general nature connected 
with the legislative duties of Congress. Again, in the year 
1810, a committee was raised to inquire into the conduct of 
General James Wilkinson, in relation to a variety of charges 
which had been publicly made against him ; they were author- 
ized to send for persons and papers. The general was notified of 
their sittings, allowed to attend in person before them, to cross- 
examine the witnesses, to confront his accusers, to exhibit evi- 
dence in his defence, and make such explanations as he might 
think necessary to a vindication of his conduct. The committee, 
alter a very laborious investigation, simply reported the facts 
to the House, who resolved that the same be transmitted to the 
President of the United States. No opinion was expressed or 
intimated as to the guilt or innocence of the general ; no re- 
<piest was made to the President to institute a court-martial, but 
he was left to the exercise of his own discretion, unbiassed by 
the slightest indication of the impression which the develop- 
ment had made on the House of JKepresentatives. The result 
we all know was that a general court-martial was immediately 
convened, and General Wilkinson was honorably acquitted. 
Both principle and precedent, therefore, cond)ine in recom- 
mending a rejection of these resolutions, which claim for this 
House a power, not merely to request another department to 
perform a particular duty, but assume the right to adjudicate 
the case, and sentence an ofiicer to irretrievable infamy, with- 



46 BENCH AND BAR OF MISSISSIPPI. 

out a lieari ng, and without appeal, save only to his God and 
the purity of his own conscience. Permit me, sir, to present to 
the view of the committee some of the unavoidable consequences 
which will flow from this premature and unauthorized proceed- 
ing. We announce to the President, and to the nation, that 
General Jackson, in the prosecution of the Seminole War, has 
violated his orders and broken the Constitution of his country, 
and that, in the trial and execution of Arbuthnot and Ambris- 
ter, he has been guilty of the horrid crime of official murder. 
We, on the part of the whole people, become the informers, and 
thereby impose on the President, as commander-in-chief of the 
army, indispensable obligation to adopt one of two alternatives 
— either to dismiss from the service that oflicer, under our de- 
nunciations, or to assemble a regular court-martial to investigate 
these charges according to the forms prescribed in the laws en- 
acted for the government of the army of the United States. 
The latter course, being the one best adapted to the attainment 
of justice, would in all probability be pursued. He details a 
court-martial, composed of high-minded military men ; charges 
and specifications are exhibited ; and the general for the first 
time is allowed to answer to them — guilty or not guilty. He is 
put on his trial, and at the very threshold he is informed that 
he has already been found guilty by the highest tribunal in the 
Union — the representatives of the American people. He never- 
theless proceeds in his defence, and is ultimately convicted and 
cashiered. Wo\dd not history record such a conviction as the 
result of our prejudication of the case ? Would not the wdiole 
world attribute the downfall of this man to the monstrous per- 
secution and flagrant injustice of the ungrateful country wdiich 
he has so nobly defended ? Yes, sir, to the latest posterity we 
should be regarded as having passed an ex parte decree of con- 
demnation, which the court-martial were bound to register, to 
secure themselves from similar animadversion. But let us sup- 
pose that, unawed by the imposing dictum which we shall have 
pronounced, the court-martial acquit the general of the several 
charges and specifications on -which he has been arrested. We 
should then have the military of this country arrayed against 
this body : we, acting under the solemn obligation of our oaths, 



GEORGE POmDEXTER. 47 

declare tliat General Jackson has been guilty of high crimes and 
misdemeanors ; we are unable to tear from him his epaulettes ; 
and when tried by his peers, our opinions are scouted, and he 
is maintained in the high rank from which we would have de- 
graded him. In sucli a controversy the only arbiter is force. 
Sir, take either horn of the dilemma, and we have abundant 
reason to shun the conse(|uences which must follow the adoption 
of the proposed resolutions. 

Our total inability to enforce the will of the majority demon- 
strates most clearly the absence of the right to express that will ; 
for, whatever any branch of the government can constitutionally 
decide, the means necessary to carry its decision into execution 
can never be withheld or questioned. Sir, I have been not a little 
amused at the evasive contortions of honorable gentlemen, who, 
to avoid the perplexing difficulties by which they are enveloped, 
gravely affirm that neither the report of the Military Committee 
nor the resolutions respecting the seizure of the posts of St. 
Marks and Pensacola and fortress of Barancas contain a censure 
of General Jackson ; that they are harmless, inoffensive expres- 
sions of opinion upon the passing events relating to the state of 
the Union. I put it to those gentlemen — for the argument has 
been resorted to by all who have spoken — whether, if I were to 
address either of them in conversation, and say, in the language 
of the propositions before the committee, ' Sir, you have vio- 
lated the Constitution of the United States, and of course you 
are perjured. You have sentenced to death and executed two 
of your fellow-men without a fair trial, and contrary to all law, 
human and divine, consecpiently your hands are stained with 
their blood.' Would they calmly reply that my expressions con- 
veyed no censure on them, and were not rejjugnant to their 
feelings or character, nor inconsistent with contemporaneous as- 
surances of my high respect and consideration ? Common-sense 
revolts at conclusions so rVliculous, drawn from such premises. 
Add to this the express charge of a violation of orders, which 
the President, it seems, is hot competent to determine for him- 
self, and I may venture to defy any gentleman to cover a mili- 
tary officer with more odious epithets, or mean, vindictive cen- 
sure. ]So man, however elevated his station, can withstand the 



4S BENCH AND BAR OF MISSISSIPPI. 

overwhelming force of such an assault on his reputation, coming 
from this august body, after mature and solenm deliberation. 
The exalted mind of General Jackson would prefer even death 
to this fatal blow, aimed at that which is more dear to him than 
life — his well-earned fame and irreproachable honor. Sir, the 
immortal Washington was charged with a violation of the Con- 
stitution, in drawing money from the treasury to pay the militia 
who served in the campaign against the insurgents in 1794, with- 
out an appropriation made by law ; but at that day the secret of 
our power to censure had not been discovered, and the transaction 
passed without animadversion. It has remained for us to put 
in motion this new engine of inquisitorial crimination, and to 
wield it against a man whose arm was never extended but in 
defending the liberty and safety of his country against the com- 
plicated enem.ies by whom it has been assailed, and whose pure 
and unblemished patriotism, combined with his invincible 
valor, fortitude, and perseverance, have shed over his brow a 
resplendent ray of glory which neither clouds nor tempests can 
obscure, so long as virtue shall predominate over the envious and 
malignant passions of the human heart. Yes, sir ! we are im- 
portuned to execrate the bloody deeds of the Seminole War, to 
chant requiems over the tombs of Arbuthnot and Ambrister, 
and to mourn over the wreck of our fallen Constitution ; and, in 
an instant, as if by enchantment, the horrid picture vanishes from 
(mr alfrighted imaginations, and eludes even the grasp of keen- 
eyed malice, and we hear the moral integrity and innocence of 
all these transactions aimounced from the same lips which utter 
their condemnation. The motives and intentions of General 
Jackson are eulogized and applauded by his most inveterate 
accusers. All the errors ascribed to him, and for which honor- 
able gentlemen are prepared to immolate his character, and ren- 
der his name, hitherto so dear to his countrymen, odious and de- 
testable, are attributed to the impetuous ardor of his zeal to 
promote the general good, and give peace and security to our 
defenceless frontier. 

He fills a space in the public eye, and commands a portion of 
the affection and confidence of his fellow-citizens too copious 
and extensive to be tolerated by the sharp-sighted politician, 



GEOEGE POmDEXTEE. 40 

whose splendid eloquence fades and evaporates before tlic sun- 
shine of renown liglited up by the unparalleled achievements of 
the conqueror of the veterans of Wellington. These modern 
casuists endeavor to magnify an unintentional viohition of the 
C'onstitutiun into a crime of the blackest enormity, which can 
neither be extenuated nor forgiven. Are tliey willing to make 
this system of political ethics applicable to themselves, and to 
have their names specified on the journal as culprits at the 
bar of an offended people, stamped with infamy and disgrace, 
if at any time they have, and with the best intentions, given 
a vote which, on a review of the subject, was found to con- 
flict with some provision of the Constitution ? What member 
of this House can say, witli certainty, tliat he has, on all occa- 
sions, construed the Constitution correctly ? And who among 
us would be satisfied to stake all his hopes and prospects on the 
issue of an investigation, which, disregarding all respect for the 
purity of the motive, should seek only to discover an inadvertent 
error, resulting from a defect of judgment in the attainment of 
objects identified with the best interests of the nation ? Sir, 
if I mistake not, the honorable Speaker, and several other gen- 
tlemen who have manifested great solicitude and dis])layed a 
torrent of eloquence to urge the expediency of passing the pro- 
posed censure on the conduct of General flackson, and who un- 
hesitatingly admit the innocence of his intentions, would be 
placed in an unpleasant situation by the operation of the rule 
which they are anxious to prescribe in this case. A few short 
years past, these honorable gentlemen were the champions who 
resisted the renewal of the charter of the old liaidv of the 
Ignited States. At that day they held the original act of incor- 
I)oration to be a usurpation of power, not delegated to Congress 
by the Constitution, and to their exertions we were indebted for 
the downfall of that institution. The same distinguished mem- 
bers, at a subsequent period, acting under the high obligations 
of duty, and the solemnity of their oaths to support the Consti- 
tution of the United States, aided and assisted in establishing the 
mammoth hank^ whicli threatens to sweep with the besom of 
destruction every other moneyed institution in the nation into 
the gulf of riiin and bankru])tcy. It will not be pretended 
4 



50 BENCH AND BAE OF MISSISSIPPI. 

that both these opposite opinions were correct ; and yet I should 
be very sorry either to impugn the motives which actuated those 
gentlemen in the instance referred to, or to pass a censure on 
their conduct for an u7ihiie7itional violation of the Constitution 
calculated to withdraw from them the confidence of their con- 
stituents. There was a time, Mr. Chairman, when the Republi- 
can phalanx in every quarter of the Union regarded the specifi- 
cation of powers in the Constitution as the limitation of the grant, 
within which every department ought to be strictly confined. 
But at this day we are told that this literal construction of the 
instrument is too narrow for the expanded views of an Ameri- 
can statesman — mere 'water-gruel,' insipid to the palate, and 
requiring the addition of a little fuel to give it energy and ac- 
tion to conduct this nation to the high destinies which await it. 
No power can be called for by an existing exigency, or a fa- 
vorite system of policy, which, according to the doctrines now 
advanced, may not be found necessary and proper to carry into 
effect some one of the specified powers in the Constitution. The 
flexible character of man and the frailty of human nature 
afford an ample apology for these oscillations, and wretched in- 
deed would be our situation if crime consisted in error, unac- 
companied by the pre-existing will to perpetrate it. No man 
who respects his feelings or his character would accept a public 
trust on such conditions. As well might we censure the Su- 
preme Court for having given a decision which we deemed con* 
trary to the Constitution, and where no corruption could be 
alleged against the judges who pronounced it, which is an 
essential ingredient to constitute an offence for which a judicial 
officer is liable to impeachment. In such a case our censure 
might be retorted by an attachment for contempt, and the hon- 
orable Speaker, representing the majesty of this House, would be 
compelled to answer the charge by purgation, or otherwise, as 
the wisdom of the House should direct. I mention this to show 
the absurdity and inefficiency of every attempt to transcend the 
powers secured to us by the Constitution. Sir, I am sick to 
loathing of this incongruous, novel, and impotent effort to 
wound the sensibility of a hero, who has sacrificed whatever of 
health or fortune he j)ossessed, and staked his life in common 



GEORGE POINDEXTER. 51 

with tlie soldier by whose side he fought, that our exposed and 
unprotected frontier might once more repose in peace and tran- 
quillity, undisturbed by the midnight yell of the merciless 
savage. 

'' The hero of New Orleans wanted not a petty Indian war to 
satiate his ambition, or add fresli laurels to the wreath already 
l)equeathed to him by his country. It was a war of hardships, 
fatigues, and privations, in which fur himself he had nothing to 
hope but the consolation of having accomplished the object for 
which he took the field, and of receiving the approbation of the 
President, to whom alone he was responsible for all the incidents 
of the camjjaign in which lie participated. Of this reward, so 
well merited and so freely bestowed, we now seek to rob him, 
by fulminating resolutions and vindictive eloquence, against 
what honorable gentlemen are pleased to call a paUnotic, un'm- 
tentional violation of the Constitution." 

The committee then rose, reported progress, and asked leave 
to sit again ; and the House adjourned. On the following day 
Mr. Poindexter resumed his argument. "Mr. Chairman, I 
wish it to be distinctly understood that the view which I had 
the honor to take of this subject on yesterday was not intended 
to shield the conduct of General Jackson from the strictest 
scrutiny. Even before this unconstitutional court, unheard and 
undefended, he fears not the penetrating touch of the most 
rigid investigation. He asks no palliatives, no exemption from 
responsibility. He needs only that protection which justice, 
sternly administered, affords to every virtuous man in tlie com- 
munity. The argument was directed to the judgment of the 
House, in reference to its own legitimate powers as a separate 
branch of the National Legislature. These consist of the right 
to judge of the elections and returns of our own members, to 
determine the rules of our own proceedings, to punish mem- 
bers for disorderly behavior, and, with the concurrence of two- 
thirds, to expel a member ; and they are all the ultimate powers 
of the House of Representatives. Allow me, sir, in closing my 
remarks on this point, to call the attention of the connnittee to 
an opinion which fell from the venerable George Clinton a 



52 BENCH AND BAR OF MISSISSIPPI. 

short time before he took a final leave of this world and was 
deposited among the tombs of the fallen heroes and patriots 
who, with him, had achieved the independence of their country. 
Placed in the chair of the Senate of the United States, he was 
required, by an equal division of that body, to give a casting 
vote on the question touching the power of Congress to incor- 
porate a national bank. It will be recollected that he negatived 
that proposition, and in support of his vote advanced the rea- 
soning by which he was influenced, which he concluded with 
the following judicious and pertinent admonition : ' In the 
course of a long hfe, I have found that government is not to be 
strengthened by an assumption of doubtful powers, but by a 
wise and energetic execution of those whicli are incontestable ; 
the former never fails to produce suspicion and distrust, whilst 
the latter inspires respect and confidence. ' The sentiment is wor- 
thy of the head and the heart which dictated it, and if properly 
improved will constitute a rich legacy from that inflexible pa- 
triot to those who may follow in the path of legislation. I ear- 
nestly recommend it to the favorable consideration of this 
body." 

Mr. Poindexter continued. " I now, sir," said he, " proceed 
to the topics already discussed with such distinguished ability. 
Perhaps I shall be guilty of a useless trespass on the patience of 
tlie committee in attempting to give them a further examina- 
tion.. The causes and origin of the Seminole War, its prosecu- 
tion and final termination, have resounded in our ears until every 
feeling is paralyzed, and all the avenues to conviction are closed 
by the frost of cold indifference or the fatal spell of uncon- 
(juerable prejudice. Under such discouraging circumstances I 
enter with diffidence on the task of exploring the ground over 
which so many have trodden before me. Urged on, however, 
by a sense of duty, and of the important results which may flow 
from the decision to be pronounced on these interesting sub- 
jects, I claim the indulgence of the committee while I submit 
my opinions in relation to the principles and facts involv^ed in 
them. The causes of this war stand first in the order of the 
discussion : upon a clear understanding of these materially de- 
pends the justification of the conduct observed in the prosecu- 



GEORGE POINDEXTER. 58 

tion of the war. Many of the riglits which appertain to a 
belligerent in a defensive, cannot be claimed in an offen- 
sive war, and this is more particularly the case in respect 
to that which is now the subject of consideration. The hon- 
oral)le Speaker, aware of the necessity of affixing the guilt of 
the contest on the United States to sustain his conclusions, has 
labored to excite our commiseration for the poor, degraded, 
half-starved, persecuted Seminoles, while he charges the people 
of Georgia with robberies and murders on their innocent, un- 
offending neighbors ; who, in their own defence, were com- 
pelled to take up arms and retaliate the injustice which had 
been practised against them. To these outrages, and the ac;- 
quisition of Indian lands by the treaty of Fort Jackson, com- 
bined with the dictatorial terms of that treaty, I understood the 
honorable gentleman to attribute the war which has produced 
so much excitement in this House. Sir, I apprehend no gentle- 
man on this floor is better acquainted with the origin of this war 
than the honorable member from Georgia who opened this de- 
Imte, and if he is willing to admit the charge of robbery and 
nnirder made on his constituents, be it so. For one, I can 
only say, that no satisfactory evidence has been adduced of the 
fact, and 1 am therefore bound to controvert it." 

[The Speaker explained : He meant only to express hh^ear.f 
that such was the fact, without intending to use the strong lan- 
guage which Mr. P. had ascribed to him.] 

Mr. P. proceeded : " Sir, I have the speech of the honorable 
gentleman before me ; it contains not only the substance of this 
charge on the people of Georgia, but it refers, in extenso, to a 
paper signed by the chiefs of ten towns, addressed to the com- 
manding officer at Fort Hawkins, specifying their grievances 
and the wrongs committed on them by the Georgians, for which 
they demanded an atonement. This paper the honorable gen- 
tleman has characterized as an artless tale, told in language 
pathetic and feeling, which carried internal evidence of, at least, 
the belief of the authors of it that they were writing the truth. 
It complains that the ' white people carried off all the red 
people's cattle, and still continued to do so ; that the whites 
first hegun ', that, three years since, the whites killed three In- 



54 BENCH Al^D BAR OF MISSISSIPPI. 

dians, and, since that, tliree otliers ; that the whites stole their 
horses, and all they had, and killed three more Indians ; to 
which they have since added six more.' Satisfaction is said to 
have been taken for all except three of the Indians alleged to 
have been murdered by the whites. From this summary of the 
paper referred to in support of the argument of the honorable 
Speaker, and the weight which he has attached to it, I think it 
must be manifest that I have not misconceived or misstated his 
premises. And I repeat, that it is not for me to interfere be- 
tween the honorable gentleman from Georgia, whose constitu- 
ents have been thus implicated, and liis honorable friend, who 
imputes to them such disgraceful conduct. ' But, sir, I cannot 
forbear to notice this ' artless tale of truth,' which is the sole 
evidence of the outrages complained of, and on which so high 
an eulogium has been pronounced. Whence came this inani- 
festo ? Sir, it emanated from the pen of that infamous for- 
eigner, Arbuthnot ; it is one of the multitude of crimes which 
he expiated on the gallows, and is second only in impudence 
and falsehood to the famous proclamation of his predecessor. 
Colonel i^ichols. Its style is artful and insinuating, its import 
pregnant with all the horrid deeds excited and consummated by 
the mischief -meditating hand of that monster whose fate is so 
deeply deplored within these walls. And is the testimony of 
this man, the avowed enemy of the United States, the instiga- 
tor of Indian hostilities by means of intrigue and seduction, 
whose occupation was misrepresentation and deception, to draw 
the unlettered savage into the vortex of impending ruin ; 
whose mind was the dark abode of vice, in all its hideous de- 
formity, worthy of the panegyric which it has received, and of 
the confidence reposed in it by the honorable Speaker ? Shall 
we dishonor the American name upon his authority, masked by 
the nominal signatures of Ten Towns, the dupes of his insidious 
policy, who knew no more of this ' j^athetic and feeling nar- 
rative, this simple tale of truth,' than he thought proper to 
communicate to them ? No, sir, I trust we shall not. We 
must look to other and more respectable sources for the concat- 
enation of events which resulted in the Seminole War : to these 
I shall presently call the attention of the committee. But the 



GEOEGE POINDEXTEE. 55 

treaty of Fort Jackson falls under the severe denunciation of the 
honorable Speaker, and the war is said to have had its origin in 
the imperious, hanghtv, and dictatorial spirit of that instrument. 
Let us advert, for a moment, to the history of this transaction, 
and bottom our reasoning on facts, and we shall be less liable to 
the errors inseparable from a superficial view of any subject. 
The Creek Indians, toward, whom the United States had, for 
more than twenty years, observed the most pacific policy, stim- 
ulating them to industry and agricultnral pursuits, and inculcat- 
ing on their minds the benefits of civilization, seized on the first 
favorable opportunity which offered, when we were contending 
for our existence as a sovereign and independent nation, against 
the undivided strength of Great Britain, to take up arms against 
us and make a common cause with the enemy ; actuated to this 
measure, no doubt, by British and Spanish counsellors, and sup- 
plied, as we know, with the means of carrying on the war at 
Pensacola. While they were in our power, weak and unpro- 
tected, we cherished and fed them, we introduced among them 
implements of husbandry, taught them to cultivate the soil, and 
the use of tlie wheel and the loom. We respected their terri- 
tory, and prohibited all intrusions upon it. When they found 
us hard pressed by the most powerful nation in Europe, we 
asked not their assistance, but advised them to stay at home and 
remain in peace ; we told them not to fight on either side. But 
the demon of foreign seduction came among them ; false hopes 
were infused into their minds ; promises of British aid were 
made to them ; the prophetic delusion of invincibility nerved 
the warrior's arm, and the tomahawk and scalping-knife were 
raised against their benefactors ; wielded with all the fury of 
savage barbarity, rendered still more ferocious by the influ- 
ence of superstition and fanaticism. Such was their ingratitude, 
and such the return for our magnanimity ! The bloody contest 
ensued. The massacre at Duck River, at Fort Mims, and the 
butchery of our frontier inhabitants, without regard to age, sex, 
<»r condition, will long be remembered by the affiicted friends 
and relatives who survive the unfortunate victims, whose inno- 
(^ent blood stained the guilty hand of the inexorable savage. 
The melancholy story of their ^vrongs will be handed down to 



56 BENCH AND BAR OF MISSISSIPPI. 

the latest generations. I liope tliey will not be forgotten by 
their country. At tills momentous crisis Jackson sprang from 
the retirement in which his vigorous mind had been permitted 
to slumber, and contemplated, not without emotions of painful 
regret, the disasters which marked the progress of our armies. 
He took the field, at the head of the hardy and intrepid sons of 
Tennessee — his faithful companions in arms. They penetrated 
the swamps and the forests, enduring, with manly fortitude, 
every hardship and privation wdiicli the most vivid imagination 
can conceive, or human language portray. The god of battles 
was on their side ; victory attended their steps ; they conquered. 
The vanquished enemy dispersed ; a part of them fled into 
Florida, to tlirow themselves under British j^i'otection, and the 
residue surrendered to the mercy of the conquering general. 
And the articles of capitulation^ signed on the 9th of August, 
1814, has been called a treaty j a chef d'mu'vre in dij^lomacy, 
cruel and insulting in its terms, to a miserable fallen foe ; derog- 
atory to the national character, and the main cause of the re- 
cent war with the Seminoles. I have yet to learn that the sub- 
jugation of one tribe of Indians, and the terms of their submis- 
sion, is justifiable cause of war, on the part of another and a 
distinct tribe. But, independent of this objection to the ground 
assumed by the honorable Speaker, I contend there is nothing 
in these articles of capitulation either unreasonable or incompat- 
ible with the sound morality which, it seems, so eminently dis- 
tinguished the commissioners at Ghent. Let it be remembered 
that a conquering general in the field asks nothing of the en- 
emy as a matter of courtesy. His business is to demand jus- 
tice, and enforce a compliance at the point of the bayonet. 
And what are the conditions on which General Jackson agreed 
to receive the subnn'ssion of an enemy who had made on the 
United States an unprovoked w\ar, in aid of a contemplated blow 
to be struck by Great Britain, on the great emporium of our 
Western commerce ? He demands ' an equivalent for all ex- 
penses incurred in prosecuting the war to its final termination ; 
that the Creek nation abandon all intercourse with the Britisli 
and Spanish posts — those infernal fiends who had excited them 
to war ; that they acknowledge the right of the United States 



GEOKGE POINDEXTER. 57 

to establish military posts and trading houses, and open roads, 
within their territory, and to the free navigation of their waters ; 
that they surrender the property taken from citizens of the United 
States and friendly Indians, in return for which the property of 
those who submitted was to be restored ; and that the insti- 
gators of the war, whether foreigners or prophets, if found withiji 
their territory, should l)e captured and surrendered. The United 
States voluntarily undertake to maintain those deluded, infatu- 
ated people, until tliey shall be enabled to support themselves by 
their own labor.' Sir, I will thank any gentleman to designate 
which of these stipulations he would have omitted. Are they 
not all essential to a permanent peace and a just indemniiication 
for the injuries we had sustained from these red allies of Great 
Britain ? Yes, sir ; nor could General Jackson have done less, 
in the faithful performance of his duty ; and less could not 
have been expected by a conquered tribe of Indians under simi- 
lar circumstances. 

" Sir, I will readily concede to honorable gentlemen that, if 
war was made on Spain, either by the orders of the President 
or by General Jackson, without the authority of Congress, it 
amounts to a violation of the Constitution, and tlie most severe 
punishment, and not mere censure, ought to await the guiltv 
hand which aims a blow at the tree of liberty, on the soil w'liert; 
alone it is permitted to grow and flourisli. But I deny that an 
act of war either has been or was designed to have been com- 
mitted by General Jackson, in any part of his proceeding in 
Florida. By war I wish to be understood to mean that state 
of things which puts one nation in collision with another, which 
arrays the people of one sovereignty against the people <^i 
another sovereignty, and not such acts as may not eventuate in 
a rupture between powers in amity with each other. Tliemaxhii 
must be reached, or the constitutional power of Congress to de- 
clare war remains inviolate. Suffer me to illustrate this postu- 
latum, by showing its analogy to another and a more familiar 
subject. Suppose a bill suspending the habeas corpus is pro- 
posed to this House, at a time of profound peace, both at home 
and abroad ; every gentleman will admit that the passage of 
such a bill would violate an express provision of the Constitu- 



58 BENCH AND BAK OF MISSISSIPPI. 

tion. I ask, if it should pass the first and second readings, and 
be ordered to be engrossed and read a third time ; if, on the 
question. Shall the bill pass ? it is rejected, whether any of the 
incipient proceedings amounted to a breach of the Constitution ? 
I presume that it will not be contended that they did. The 
violation of the instrument begins with the operation of the 
measure which it prohibits. So neither is an incipient step 
taken by a subordinate authority under the government, which 
bears the semblance of hostihty to a foreign nation, war, until 
it passes the ordeal of the ultimate power of both countries, 
and is deemed by them not susceptible of amicable and lionor- 
able explanation and amends. Let us test the conduct of Gen- 
eral Jackson by these plain and simple rules, and it will be 
found that he has neither violated the Constitution nor com- 
promitted the peace of the nation. 

" I have already attempted to prove to the committee that the 
conduct of Spain in relation to our savage enemy justified the 
entrance of our army in her territory, and the occupation of the 
posts of St. Marks and Pensacola and the Fortress Barancas ; 
and I will adn^t, for argument's sake, that these latter acts 
Avere not strictly justifiable, an*d that Spain had a right to com- 
plain of tliem ; and yet I say, they did not amount to the defi- 
nition of war, and consequently that General Jackson is not 
chargeable with having usurped the powers of Congress. To 
sustain this position I rely on the practice of the most enlight- 
ened European governments, in cases similar in their character, 
and on the effect of the measures upon the subsisting relations be- 
tsveen Spain and the United States. The European precedents 
to which I shall refer may be found in the celebrated letter of 
Mr. Madison to Mr. Rose, on the subject of the attack on the 
American frigate Chesapeake by the British ship Leopard. 1 
beg leave to read them in the order given them in that corre- 
spondence." 

Here Mr. Poindexter read at length from Mr. Madison's 
letter an account of the expulsion of the English salt manufac- 
turers from Turk's Island, in 1764, by a detachment of French 
troops from St. Domingo ; and the demand for reparation on 
the part of the Englisli, and its concession by the French. Also 



GEOKGE POmDEXTEH. 59 

an account of tlie attack upon the English settlements at 
Nootka Sound, and the capture of English vessels there by the 
Spaniards, in 1Y89, and which resulted in reparations being de- 
manded and promptly afforded. And lastly, the expulsion of 
the British settlers from the Falkland Islands, in lYTO, by Span- 
ish troops under the orders of the Governor of Buenos Ayres, 
for which satisfaction -v^as also demanded and reluctantly given. 

Mr Poindexter then proceeded : 

" In these instances force was resorted to : actual violence 
used, blood spilled, vessels captured, whole settlements broken 
up and destroyed ; and yet the proud and haughty monarchs of 
England, France, and, I may add, of Spain, at that day did not 
consider either of them as actual war, but occurrences open to 
fair and candid explanation and honorable amends ; which, being 
demanded, resulted in the preservation of peace between the 
parties concerned. 

" These were direct acts of hostility, committed by the mili- 
tary of one power against the subjects of the other without a 
])revious declaration of war, and therefore more offensive to the 
dignity and honor of the sovereign than the temporary occupa- 
tion of a town or fortress, in the prosecution of a war with an-, 
other nation, to whom the same privilege had been granted. 
According to the practice of nations, therefore, the proceedings 
at St. Marks and Pensacola cannot be regarded as deciding the 
question of peace and war between Spain and the United States, 
waiving all the circumstances which so fully justify the com- 
manding general. !N^either government understood them as 
amounting to a change of the amicable r/jlations which existed 
prior to these occurrences, and which it was their mutual desire 
to preserve. Spain demanded the restitution of the posts in the 
possession of the American troops ; they were ordered to be 
restored — Pensacola unconditionally, and St, Marks on the ap- 
pearance of an adequate force to protect it from the savages. 
The Spanish minister, in the name of his master, also demanded 
the punishment of GeneralJackson ; he was told that the Presi- 
dent would ' neither inflict punishment nor pass a censure ' on 
the general for conduct which found its justification in the 
j'>erfidy and duplicity of Governor Masot and the officers of his 



60 BENCH AND BAR OF MISSISSIPPI. 

'Catliolic Majesty in Florida. "We, on our part, demanded tlie 
punishment of these Spanish officers ; they have neither been 
punished nor their conduct formally investigated. 

" Thus the affair has terminated, to the satisfaction of both 
parties, so far as it is essential to the preservation of peace be- 
tween the two countries. It did not originate in a disposition 
to produce a rupture with Spain, either on the part of the Presi- 
dent or of General Jackson. Pizarro blustered for a while, 
published his protest, interdicted all further communications 
with this Government until proper explanations were made, and 
submitted the matter to the Congress of Aix la Chapelle, hop- 
ing to excite the sympathy of the allied sovereigns, and to ob- 
tain their interposition in behalf of Spain. He, however, in a 
few days so far subdued his resentment as to resume his usual 
correspondence and intercourse with Mr. Irving, our minister 
at Madrid. The Congress of Aix la Chapelle expressed no 
opinion on the subject ; and Don Onis, the minister of Ferdi- 
nand at this place, has never for a moment ceased to fulfil his 
functions, witliout the smallest interruption ; and so little was 
the respect which he paid to the letter of Pizarro, suspending 
further communications with the American Government, that 
lie did not think it worthy of being officially made to the Sec- 
retary of State. He places the vindication of his master on 
ground totally different from that assumed in this House by 
those who defend his cause, in attempting to censure the con- 
duct of General Jackson. He says, in a letter to Mr. Adams, of 
the 8tli of July, 1818, ' It cannot be supposed that the Indians, 
against whom the American commander directed his operations, 
received protection in Florida. They never received either 
favor or protection from, the Spanish authorities, either within 
or without the territory under their jurisdiction.'' Speaking 
of the Governor of Pensacola, he alleges that he took every 
necessary precaution to prevent the Indians being supplied with 
arms and ammunition within liis Majesty's territory. These 
facts being of public notoriety, and iwpossihle to refute, there 
can be no excuse, pretext, or subterfuge offered for a series of 
such unheard-of outrages. 

" And, sir, this is the true and onlv basis on which to rest 



GEORGE POINDEXTER. 61 

the slightest charge against the proceedings of General Jackson. 
It is a qnestion of fact ; and if Don Onis speaks tlie tnitli, in 
saying tliat the Indians received neither favor nor protection 
from Luengo or Masot, and tliat everything was done in their 
power to prevent their heing suppHed witli arms or ammunition, 
and that it is impossible to refute these facts — then I say with 
him, that tlie American commander was censnrable, and onght 
to be brought before a general court-martial. i3iit, unfortu- 
nately for the Don, the evidence is all on the other side ; and 
these facts, which he says ' it is impossible to refute,' are contra- 
dicted even by tlie officers themselves, whom he thus boldly 
defends. I contend, therefore, on the authority of the Spanish 
minister himself, that, the proof being against him, the con- 
clusion falls, and General Jackson stands acquitted by Spain of 
all blame or censure for his occupation of St. Marks and Pensa- 
cola. The Chevalier Onis will not stooj) so low as to put the 
issue of the controversy on the wire-drawn theories and ingenious 
sophistry with which he has been so genevoushj supplied by 
honorable gentlemen who have participated in this debate. He 
takes the high and imposing attitude of faets^ from which he 
deduces the innocence of the colonial authorities in Florida, and 
the consequent guilt of the American commander ; and surely 
he ought to be allowed to shape the defence of his own immac- 
'ulate master. On that ground I am content to submit the case 
to the decision of an impartial world. Sir, if tlie United States 
have been precipitated into hostilities with Spain by General 
.Fackson, and the constitutional powers of Congress, in that 
respect, have been usurped, by whom has the war been recog- 
nized, and where are its effects to be seen or felt ? Spain has 
given no evidence of a belief on her part tliat she is at war with 
us, or that she contemplates becoming so. We have disavowed 
all hostile intentions toward her. She has a minister resident 
at Washington, who is treated with every respect due to his 
rank, and who is now employed in the interesting duty of form- 
ing a treaty on the subjects which have so long remained un- 
settled between his sovereign and this country. We also have 
a minister of equal rank and dignity at Madrid, who receives 
there the most polite attention. No armies are in the field, no 



62 BENCH AND BAK OF MISSISSIPPI. 

fleets 01) the ocean, no appropriations required to carry on tlie 
war ; but it is nevertheless the foundation upon wliich the whole 
arguments of the advocates of these resolutions is built, and all 
the dreams of our violated Constitution, with which we have 
|)een amused for the last three weeks, are predicated on this 
visionary war, which honoral)le gentlemen imagine to exist, for 
the sake of the argument, but which neither of \X\q feigned 
belligerents acknowledge, and which is carried on without men, 
money, or ships, while both nations are under the singular delu- 
sion that they are in a state of profound peace ! I have heard, 
sir, of wars in the moon, and 1 presume this must be one of that 
description. 

" Mr. Chairman, I think it must be manifest to every candid 
mind, disposed to look at these events with an impartial eye, 
that no act of war has been committed against Spain ; that 
none M-as ever intended ; that our relations of amity with that 
nation have undergone no change ; and that General Jackson 
has been most unjustly charged w^ith a violation of the Constitu- 
tion of his country. The total neglect of Spain for the last ten 
years to maiutain her authority in Florida, and the facilities 
which it affords to our enemies, has compelled the Government 
of the United States to consider that territory open to our arms 
whenever the public safety required that they should be sent 
there ; and the Spanish Government has no just right to com- 
plain of treatment wliich her own negligence and imbecility 
has imposed on us as a duty in self-defence. 

" Permit me, sir, to call the attention of the committee to a 
measure which was adopted during the administration of Presi- 
dent Madison, relating to that part of Florida which lies west 
of the Perdido, and which we claimed under the cession of 
Louisiana. Spain was in possession of the country, and con- 
tested our claim ; a special mission had been sent to Madrid to 
negotiate a treaty of limits with that government, and the effort 
to effect that object was unsuccessful. Pending this question of 
title between the two governments, in the year 1810, President 
Madison issued a proclamation annexing the disputed territory 
to the present State of Louisiana, then the Territory of Orleans. 
That proclamation is in the following words : 



GEOEGE POINDEXTER. f58 

" ' Now be it known that I, James Madison, President of tlie 
United States of America, in pursuance of these weiglity and 
urgent considerations, have deemed it right and requisite tliat 
possession should be taken of the said territory, in the name 
and behalf of the said United States. William C. C. Claiborne, 
Governor of the Orleans Territory, of which the said territorvis 
to be taken as part, will accordingly proceed to execute the 
same, and to exercise over the said territories the authorities 
and functions legally appertaining to this office ; and the good 
people inhabiting the same are invited and enjoined to pay due 
respect to him in that character : to be obedient to the laws, to 
maintain order, to cherish harmony, and in every jnanner to 
conduct themselves as peaceable citizens, under full assurance 
that they will be protected in the enjoyment of their liberty, 
property, and religion.' 

" To carry the power vested in him into effect. Governor 
Claiborne was authorized to call in to his aid the regular troop.s 
of the United States on the Mississippi ; and if these should be 
deemed insufficient, to call out the militia of the Orleans and 
Mississippi Territories, and to t-e^kQ forcible j^os session of the ter- 
ritory, if resistance should be made. The order was executed. 
The laws of the United States were extended to the country, 
by virtue of this proclamation, and at the time, and for more 
than one year afterward, a Spanish garrison remained at Mobile. 
This step was taken but a few weeks before the meeting of 
Congress, and communicated to both Houses at the opening of 
the session. An interesting and animated debate arose in the 
Senate on that part of the President's message. Parties were 
then marshalled ; the opposition to the administration was sys- 
tematic and uniform, and its friends were equally so. The pro 
ceedins: was denounced as an unauthorized act of war on 
Spain ; as a usurpation, by the Executive, of the power vested 
alone in Congress to declare war. The Constitution was said to 
be violated ; the country menaced with all the horrors of war, 
both by England and Spain. The arguments used on that oc- 
casion by the old Federal party bear a strong resemblance to 
those which we have heard on the present occasion from the 
friends of these resolutions. 1 listened, sir, with great pleas- 



fU BENCH AND BAR OF MISSISSIPPI. 

ure, to a very able and eloquent speech delivered by the hon- 
orable Speaker, then a member of the Senate, in defence of this 
executive measure. He received my thanks, and I have no 
doubt the thanks of the nation, for the unanswerable and lucid 
views which he took of that subject. I hope the honorable 
•gentleman will pardon me for the liberty which I take in read- 
ing a few sentences fro in that speech, to the committee. Their 
application to the recent occurrences in Florida will be readily 
])erceived, conveyed in language much superior to any which 
falls within the compass of my humble capacity. ' I have,' said 
he, ' no hesitation in saying that if a parent country either can- 
not or will not maintain her authority over a colony adjacent 
to us ; and if misrule and disorder prevail there dangerous to 
the Union, or menacing the peace of our frontier, or unfavor- 
able to the execution of our laws, we have a right, on the eter- 
nal principles of self -preservation, to lay hold of it. This prin- 
I'iple alone, independent of any title, ivoidd j astify the occupa- 
tion of Florida.'' Sir, if the eternal principle of self-preserva- 
tion alone would justify the occupation of that part of Florida, 
without any title to guard against a contingent danger, will it 
not apply with more than equal weight to a case of actual ex- 
isting danger, when the frontier is deluged in the blood of help- 
less age and infancy ? If misrule and disorder prevailed in that 
portion of the province, at the time we took possession of it, 
the same remark was applicable to Pensacola and its dependen- 
cies when that place was surrendered to the American forces. 
We were then at war with no Indian tribe who gained admis- 
sion into the territory ; we apprehended no immediate invasion 
from any quarter ; and I ask the honorable gentleman, if that 
measure was justifiable on the reasonable probability of ap-' 
proaching hostilities, can he condemn General Jackson for a 
similar precaution, surrounded as he was by a combination of 
Indians and negroes, prepared to renew their deeds of cruelty 
and blood whenever the army under his conunand should retire 
within the limits of the United States i? 

" Let me not be told that we had a fair title to the country 
under the purchase of Louisiana ; for, so far as it related to the 
national feelings of Spain and to the compromitment of our own 



GEORGE POINDEXTER. 65 

peace, it was sufficient tliat Spain was in the actual possession 
of the soil, and claimed a paramount right to the sovereignty 
over it. We forcibly wrested it out of her possession, and ex- 
tended our laws, both general and local, to its inhabitants, by 
frodamation^ and I am at a loss to distinguisli that act from 
the military occupation of another district in Florida, on the 
same great principle of self-preservation. I accord my appro- 
bation to both measures, alike in their character and in their 
effects, and leave the honorable Speaker to show, if he can, in 
what consist the shades of difference which will authorize us to 
justify the one and censure the other. On various other occa- 
sions we have marched troops into Florida, and fought battles 
there, without exciting the smallest sensation in this House, on 
the score of a usurpation of its powers by the Executive. In 
1812, Colonel Smith, at the head of a rifle regiment, was jjostod 
before St. Augustine ; a detachment from his command was 
attacked and defeated by the Indians and negroes from the 
Spanish fort ; he declared his intention of storming the place, 
but his troops were enfeebled by disease, and he retreated to 
the State of Georgia. A regiment of volunteers, commanded by 
Colonel Williams of Tennessee, likewise carried their military 
operations into that country. The Georgia militia have fre- 
quently been ordered there, in pursuit of hostile Indians. In 
1811:, General Jackson fought a battle in Pensacola, and dis- 
lodged the British force in the Barancas, who blew up the for- 
tress on retiring into their vessels. Since that period the negro 
fort, so often mentioned, on the Appalachicola was attacked 
and destroyed by a combined land and naval force. All these 
events have passed in review before us, and never until now 
were they considered either war on Spain or a violation of the 
Constitution. But, sir, everything heretofore held sacred, both 
in principle and practice, must bend to this unprecedented 
scheme of passing censure on General Jackson, who has been 
modestly compared to Alvear, Cortez, Pizarro, and Hyder Ali, 
by an honorable gentleman from j^Jew York (Mr. Storrs), and at 
the same time the gentleman assured us of the very high respect 
in which he held the character and services of that distinguished 
hero ! Sir, there are some men too high in the estimation of 
5 



66 BENCH AND BAR OF MISSISSIPPI. 

tlieir fellow-citizens to be permitted quietly to enjoy the dis- 
tinction conferred on them by a grateful country. Had Gen- 
eral Jackson been less useful to the nation he might have 
escaped the mortification of the denunciations uttered against 
him on this floor." 

Mr. Poindexter continued. " Sir," said he, " I have been 
mortified and disgusted at the sickly agonies and sympathetic 
effusions which have been so often repeated by honorable 
members on the subject of the trial and execution of the insti- 
gators of the Seminole War, Arbuthnot and Ambrister. In- 
flated appeals to our humanity and magnanimity have rung 
through this hall, to excite our commiseration for these guilty 
men : they have failed to reach either my judgment or the feel- 
ings of my heart ; my sympathies, thank God, are reserved for 
the bleeding and suffering citizens of my own country / and 
objects of that description in abundance are exhibited to our 
view, in the narrative of events connected with tlie short but 
bloody career of these foreign incendiaries in Florida. The 
punishment inflicted on them was more than merited by the 
enormity of their crimes ; the example, I trust, will be a salutary 
warning to British agents on the whole extent of our Indian 
frontier ; and if future outrages of the same kind should be 
practised, we owe it to the safety and honor of our country to 
retaliate on the offenders with the utmost rigor and se^'erity, 
nntil the subjects of foreign nations shall be tanght to dread our 
vengeance if they do not respect our rights. Sir, it is not my 
intention to enter into a detailed argument on the various tech- 
nical objections which have been resorted to by gentlemen 
skilled in the nicety of special pleading, to show that a count or 
an innuendo is wanting in the declaration, or that judgment has 
not been pronounced according to the fonr.s in such case made 
and provided. Such trash may serve to supply the vacuum of 
empty declamation ; but I can never consent to convert this 
great political theatre into a court of errors and appeals, sitting 
to scan the record and regulate the proceedings of inferior tri- 
bunals. My views are directed to measures in reference to their 
operation on the general welfare of my country, and whenever 
that effect is produced I would not retrace the step, unless the 



GEORGE POINDEXTER. 67 

honor of the nation imperiously demanded the sacrifice. The 
proceedings of the special court convened by General Jackson 
on this occasion have been fully and ably defended by honor- 
able gentlemen, whose profound knowledge of military science 
and the practical usages of war gives to their opinions and ar- 
guments the weight of authority, and supersedes the necessity 
of further investigation. If, indeed, errors in point of form 
were committed by the court, or if they misunderstood the 
powers vested in them by the order of the commanding general, 
it does not become the dignity of this House to ascribe these ir- 
regularities to General Jackson ; it is to the general order we 
must look for a definition of the duties which the court were 
required to perform ; they were instructed to ' record the doc- 
uments and testimony in the several cases, and tlteir opinion as 
to the guilt or innocence of the prisoners, and what punish- 
ment, if any, should be inflicted.' Call it, therefore, a court- 
martial, or by whatever other name you please, these were the 
powers conveyed to it, and no assumed title could enlarge the 
grant or substantially change its character. The opinion of the 
court was given in the form of a sentence, and carried into ex- 
ecution, but the same result would have followed if there had 
been no departure from the literal import of the order. To 
cavil at such petty inaccuracies, where substantial justice has 
been done, is, I repeat it, unbecoming the dignity of the House 
of Representatives. That these perfidious miscreants met the 
fate which their conduct merited cannot be seriously doubted 
by any one. On the principle of reprisals, it was lawful to 
execute them ; and, as criminals of the highest grade, whose 
guilty hands involved a whole country in scenes of massacre and 
robbery, they fell just victims to the offended laws of nature 
and of nations. ' Those who, without authority from their 
sovereign, exercise violence against an enemy and fall into that 
enemy's hands, have no right to expect the treatment due to 
prisoners of war ; the enemy is justifiable in putting them to 
death as banditti.' Again, ' the violences committed by the sub- 
jects of one nation against those of another, witliout authority, 
are looked upon as robberies, and the perpetrators are excluded 
from the rights of lawful enemies ; ' and also, ' whosoever offends 



68 BENCH AND BAR OF MISSISSIPPI. 

the state, injures its rights, dlstarhs its tranquillity, or does it a 
prejudice in any manner whatever, declares himself its enemy, 
and exposes himself to be justly punished for it.' Vattel, 162. 
Sir, can any gentleman compare these principles of national 
law with the evidence in the trials of Arbuthnot and Ambris- 
ter, and seriously contend that they have suffered nnjustly and 
contrary to law ? that they have been doomed to perish under 
the rod of military despotism ? I frankly confess, it would re- 
quire a stubborn determination to persevere in error, which I do 
not possess, to draw conckisions so inconsistent with such pre- 
mises. Some gentlemen have attempted to make a distinction 
between the guilt of these men. Ambrister (say they) was taken 
in arms ; he commanded the negroes and Indians, led them into 
battle, was identified with them, and therefore deserved death. 
Arbuthnot, we are told, was a mere merchant, a dealer in the 
articles which the Indians were accustomed to j^wchase. 

" I have, in the preceding part of my remarks, had occasion 
to advert to the objects for which this man entered Florida, and 
the part which he took in exciting the Indians to war. If 
Nichols was an innocent dealer in ' the articles which the In- 
dians were accustomed to purchase,' so was Arbuthnot : their 
views were the same ; they held the same language to the savages, 
and each gave a pledge of British aid, in case war should be 
waged for the recovery of the lands ceded by the treaty of Fort 
Jackson. He frequently assured the chiefs that he had au- 
thority to correspond with his Majesty's minister at Washington 
— with Governor Cameron, of New Providence, and the Gov- 
ernor-General of Havana, on the subject of the necessary sup- 
plies for carrying on the war ; and that he was in possession of 
a letter from Earl Bathurst, which informed him that Mr. 
Bagot was instructed on that subject. On the back of a letter 
addressed by him to that minister he states the aggregate force 
embodied among the Indians, and the positions at which thev 
were posted, and requests a supply of arms and annuunition, 
apecitied in the following memorandum : 

^' ' A quantity of gunpowder, lead, muskets, and flints, suffi- 
cient to arm 1000 or 2000 men. Muskets, 1000 ; more smaller 
pieces, if possible ; 10,000 flints,, a proportion for rifle, put up 



GEORGE POINDEXTER. 69 

separate ; 50 casks gun])owder, a proportion for rifle ; 2000 
knives, 6 to 9 inch blade, good quality ; 1000 tomahawks ; 100 
lbs. vermilion ; 2000 lbs. lead, independent of ball for musket. ' 
" This paper speaks for itself ; it cannot be misunderstood, 
and shows most clearly the participation of Arbutlmot in pro- 
sliding the means necessary to the prosecution of the Seminole 
War. He was the prime minister of the hostile Indians ; had a 
full power of attorney to make talks, and act for them in all 
cases whatsoever ; and if Ambrister, who was but a subordinate 
agent, was justly sentenced to suffer death, what excuse can be 
offered for the man who put the whole machinery of war, mas- 
sacre, and robbery in motion ? Can it be said that he had not 
disturbed the tranquillity of the United States, or done us a 
prejudice in any manner whatever ? I presume it cannot ; and 
of course, according to the maxims of public law to which I 
have referred, ' he had declared himself our enemy, and ex- 
posed himself to be justly punished.' It is unnecessary for me 
to enlarge the discussion on the right of the commanding gen- 
eral to retaliate on the enemy for the acts of cruelty and bar- 
barity which were practised in the progress of this war. Hon- 
orable gentlemen who controvert the right have shown no in- 
stance in which it was denied, either in Europe or America ; 
and, in support of it, we have the examples of Washington 
and many other general officers who fought in the War of the 
Revolution. Yes, sir. General Jackson had the right to inflict 
punishment on these outlaws. I rejoice that he exercised that 
right ; and if we do not paralyze and destroy the good effects 
of the act, it will contribute in no small degree to the future 
peace and security of our frontier. But the honorable Speaker 
has said that we have no right to practise retaliation on the 
Indians ; that we have forborne to do so from the earliest set- 
tlement of the country, and that it has become the common law 
of the land, which we are bound not to violate. Sir, from what 
source does the gentleman derive the principle that a right in- 
herent in the nature of man — which he inhales with his first 
breath ; which ' grows with his growth and strengthens with 
his strength ' ; which has the fiat of God for its sanction, and is 
incorporated in the code of all the nations of the earth — becomes 



TO BENCH AND BAE OF MISSISSIPPI. 

extinct with regard to those who may forbear to exercise it, from 
motives of policy or liinnanity, for any number of years ? That 
a common law is thereby entailed on tlie American people, to 
the latest generations, by which they are required to bend be- 
neath the tomahawk and scalping-knife of the savage, and sub- 
mit to every cruelty and enormity, without the privilege of re- 
taliating on the enemy the wrongs and injuries we have suffered 
by his wanton transgression of the rules of civilized warfare ? 
We have, it is true, tolerated much of the inhuman conduct of 
the aljorigines toward our frontier inhabitants. We have en- 
deavored to teach them, by examples of humanity and mag- 
nanimity, the blessings and advantages of civilization ; but in- 
stances are not wanting of the most severe retaliation on these 
monsters, for their deeds of barbarity. If, however, there was 
not a solitary case on record, of the exercise of the right, it 
remains inviolate and inviolable. No community has the powder 
to rclincjuish it, and bind posterity in the chains of slavish non- 
resistance. The gentleman's common law will not do for the 
freemen of the United States ; it is ■unique and absurd. Sir, if 
the committee will pardon the digression, this novel idea of 
common law reminds me of an occurrence which is said to have 
hap])ened in the early period of the settlement of the present 
polite and flourishing State of Kentucky. A man in personal 
combat deprived his antagonist of the sight of an eye, by a 
practice familiar at that day, called gouging. The offender was 
prosecuted and indicted for the outrage ; he employed counsel 
to defend him, to wliom he confessed the fact. ' Well, sir,' said 
the lawyer, ' what shall I say in your defence ? ' ' Why, sir,' said 
he, ' tell tJieni it is the cuMom of the country !'' And I presume, if 
the honorable Speaker had presided on the trial, he would have 
said, ' Gentlemen of the jury, it is the common law of Ken- 
tucky, and you will find a verdict for tlie defendant.' But, sir, 
to be serious, let me bring the case home to the honorable 
Speaker himself. Suppose a band of these barbarians, stimu- 
lated and excited by some British incendiary, should, at the 
liour of midnight, when all nature is wrapt in darkness and re- 
pose, sound the infernal yell, and enter the dwelling of that 
honorable gentleman, and in his presence pierce to the heart the 



~\ 



GEORGE POINDEXTEE. 71 

wife of his bosom, and the beloved and tender infant in her 
arms — objects so dear to a linsband and a father — would he 
calmly fold his arms and say, ' Well, 'tis hard ; but it is the 
common law of the country, and I must submit ' ? No, sir ; his 
manly spirit would burn with indignant rage, and never slum- 
ber till the hand of retributive justice had avenged his wrongs. 

" ' Mercy to him who shows it, is the rule, 
And righteous limitation of the act, 
By which Heaven moves in pardoning guilty man ; 
And he that shows none, being ripe in years, 
And conscious of the outrage he commits, 
Shall seek it, and not find it, in his turn.' 

*' I have no compassion for such monsters as Arbuthnot and 
Ambrister ; their own country is ashamed to complain of their 
fate ; the British minister here has disavowed their conduct and 
abandoned their cause ; and we, sir, are the residuary legatees 
of all the grief and sorrow felt on the face of the globe for 
these two fallen murderers and robbers ! For I call him a 
murderer who incites to murder. 

" Mr. Chairman, I am not the eulogist of any man ; I shall 
not attemjDt the patiegyric of General Jackson ; but if a grate- 
ful country miglit be allowed to speak of his merits, 

" Louisiana would say : ' You have defended our capital 
against the veteran troops of the enemy, by whom it would 
have been sacked, and our dwellings enveloped in fiames over 
the heads of our beloved families.' 

" Georgia : ' You have given peace to our defenceless fron- 
tier, and chastised our ferocious savage foe, and the perfidious 
incendiaries and felons by whom they were excited and coun- 
selled to the perpetration of their cruel deeds. You have 
opened an additional territory to our rich and growing popula- 
tion, which they may now enjoy in peace and tranquillity.' 

" Alabama and Mississippi : ' You have protected us in the 
time of our infancy, and in the moment of great national peril, 
against the inexorable Red Sticks and their allies ; you have 
compelled them to relinquish the possession of our lands, and 
erelong we shall strengthen into full manhood, under the smiles 
of a beneficent Pj'ovidence. ' 



72 BENCH AND BAK OF MISSISSIPPI. 

'^ The lohole Western Country: 'You have preserved the 
great emporium of our vast commerce from the grasp of a pow- 
erful enemy ; you have maintained for our use the free navi- 
gation of the Mississippi at the hazard of your life, health, and 
fortune. ' 

" The Nation at large : ' You have given glory and renown 
to the arms of your country, throughoat the civilized world, 
and have tauglit the tyrants of the earth the salutary lesson 
that, in the defence of their soil and independence, freemen are 
invincible. ' 

" History will transmit these truths to generations yet unborn ; 
and should the propositions on your table be adopted, w^e, the 
representatives of tlie people, subjoin : ' Yes, most noble and 
valorous captain, you have achieved all this for your country ; 
we bow down under the weight of the obligations which we 
owe you, and as some small testimonial of your claim to the 
confidence and consideration of yoar fellow-citizens, we, in their 
name, present you the following resolutions : 

" ' Resolved., That you, Major-General Andrew Jackson, 
have violated the Constitution which you have sworn to support, 
and disobeyed the orders of your superior, the commander-in- 
chief of the army and of the navj'^ of the United States. 

" ^Besolved, That you, Major-General Andrew Jackson, have 
violated the laws of your country, and the sacred principles of 
humanity, and thereby prostrated the national character, in the 
trial and execution of Alexander Arbuthnot and Robert C. 
Ambrister, for the trilling and unimportant crime of exciting 
the savages to murder the defenceless citizens of the ITnited 
States. 

" ' Accept, we pray you, sir, of these resolves ; go down to 
your grave in sorrow, and congratulate yourself that you have 
not served this great Pepublic in vain. ' 

" Greece had her Miltiades, Eome her Belisarius, Carthage her 
Hannibal, and ' may we, Mr. Chairman, profit by the exam- 
ple ! ' Sir, if honorable gentlemen are so extremely solicitous 
to record their opinions of this distinguished gentleman, let us 
erect a tablet in the centre of our Capitol Square ; let his bust 
designate the purpose ; thither let each man repair, and engrave 



JOSEPH E. DAVIS. T3 

the feelings of his heart. And, sir, whatever may be the opin- 
ions of others, for one, I should not hesitate to say, in the lan- 
guage of the Sage of Monticello, ' Honor and gratitude to him 
who has filled the measure of his country'' s honor.'' " 



JOSEPH EMORY DAVIS. 

The subject of this sketch was born near Augusta, Georgia, 
on the 10th of December, 1784. He was the oldest one of a 
family of ten children, of which his brother Jefferson Davis was 
the youngest. His father, Sanmel Davis, was a soldier of the 
American Revolution, and served in the mounted troops of 
Georgia, his native State, from his seventeenth year to the close 
of the War for Independence. 

"When Joseph was about twelve years of age his father emi 
grated to Kentucky, and settled in that portion of Christian 
County which was afterward erected into the connty of Todd. 
Having received such education as the common schools of the 
country afforded, he was placed at an early age in a mercantile 
house, where he acquired those characteristic habits of busi- 
ness and knowledge of accounts which, no doubt, contributed 
largely to his future success. But he had but little taste for 
the life of a tradesman, and after having served a few years as 
a merchant's clerk he began the study of law in the office of 
Judge Wallace, of Russellville, Kentucky. Here he found a 
Held commensurate with his ambition, and suitable to the devel- 
opment of his genius. 

In 1811 he removed with his father's fanjily to Wilkinson 
County, Mississippi, and continued to read law, under Joseph 
Johnson, Esq. In 1812 he was admitted to the bar, and com- 
menced practice at Pinckneyville in that county. He remained 
there, however, but a short time before he removed to Green- 
ville, in Jefferson County, where he remained until 1820, and 
rose to a high rank in his profession. 

In 1817 the people of that county chose him as a delegate to 
the convention for the organization of the State Government ; 
and his services in framing the fundamental law of the State 



74 BENCH AIS^D BAR OF MISSISSIPPI 

were marked by a depth of legal learning, of sound judgment, 
and practicality, which placed him in the ranks of its most 
eminent and useful men. 

In 1820 he removed to Natchez, at that time the most im- 
portant commercial town in Mississippi, and formed a copartner- 
ship for the practice of his profession with Thomas B. Reed, 
who was then the acknowledged leader of the bar of the State. 
It was the usage of the lawyers of that period to travel the cir- 
cuit with the judge, it being one of the customs of England 
which still lingered in this country ; and as those of the high- 
est rank were thus brought in constant contact, it required the 
highest intellectual qualities to achieve success ; consequently 
the bar of Mississippi at that time was not inferior, perhaps, 
to any that ever existed in the State ; and it was under these 
exacting circumstances, and in the midst of this array of talent, 
that Mr. Davis attained his eminence. 

As a lawyer Mr. Davis was thoroughly versed in the learning 
of his profession. He possessed an intellectual vigor, an in-, 
quisitiveness of mind, and a practicality of disposition which 
led him to look beyond the mere existence of the statute to an 
inquiry into the origin and reason of the law. The poetry and 
sentimentality of his nature had been pruned and subdued by 
the mathematical teaching and stoical example of his father, 
and he viewed things in the light of reason and stern reality. 
His opinions were the result of deep reflection, and his views 
were always judicious and prospective. His perception w^as 
acute, and he was quick to detect points of weakness, and slender 
probabilities. As Lord Coekburn said of Lord Jeffrey, "He 
was a first-rate legal pilot. He saw at the outset of the voyage 
all the rocks and shoals on which the ship was likely to strike, 
and all the gales that might favor or obstruct it ; all the anchors 
that would hold, and all the harbors of refuge into which he 
might run. He scented what would turn out nonsense or false- 
hood a great way off, and thus was one of the safest of all gen - 
eral advisers. It was not exactly acuteness or talent ; it was a 
faculty which these qualities often obstruct ; it was the power of 
taking large and calm surveys, with a view to detect strong or 
weak points." 



JOSEPH E. DAYIS. T5 

To these superb qualities of judgment and perception, in 
wliicli lay the secret of his facility in the formation of correct 
opinions, and in a wise regulation of conduct, Mr. Davis added 
a correct association of ideas and a memory for details whicli 
enabled him to array facts and circumstances in the most exact 
and imposing order, and a logical power that presented them in 
the most forcible manner to the minds of his hearers. And to 
his powers of analysis and synthesis were superadded superior 
oratorical accomplishments. He had a deep, clear, and nmsical 
voice, a brilh'ant imagination, a refined taste, forcible expres- 
sion, a gi'aeeful manner, and engaging personal appearance. 
Hence he was a pleasing and entertaining speaker and a power- 
ful advocate. 

In 1827 he decided to retire from the bar and begin the life 
of a planter, and steadily closed his engagements. His profes- 
sional success had been great and his practice remunerative, and 
he now sought that repose which can only be found in the 
bosom of rural domesticity. But he carried with him iiito his 
new occupation the same energy and capacity which character- 
ized his career as a lawyer, and the result was tljat, in 18G1, he 
possessed one of the most valuable plantations on the Mississip- 
pi River. His numerous slaves, flocks and herds, beautiful 
grounds, extensive orchards, commodious dwelling, and large- 
hearted hospitality, caused his home to become a bright land- 
mark in the memory of the happy days of a prosperous 
country. 

Among the prominent features of his character were his great 
benevolence and humanity. Many youths of both sexes were in- 
debted to him for a liberal education, and some who were his 
friends in the da3's of his comparative poverty found in their 
necessities a refuge under his roof ; and so considerate was his 
kindness, so sincere his generosity, and so hospitable his man- 
ners, that no one to wliose wants he administered ever felt the 
ftting of dependency, or suffered humiliation in the reception of 
his benefits. 

He was exceedingly kind and just in the management of his 
slaves. It was a fixed rule upon his plantation that punishment 
should only be inflicted for crime- of which the accused had been 



76 J3E]SrCH AND BAR OF MISSISSIPPI. 

convicted by a jnry, selected from the other negroes on the 
plantation ; and over these trials he alone presided as judge ; 
and he gave it as his experience that the tendency of his planta- 
tion juries, like those of other courts, was to find a verdict not 
from the evidence adduced, but from their opinion of the char- 
acter of the accused, a disposition which it became necessary for 
him to check by the most careful charges and an un-judgelike 
defence of the criminal. His tender care for them ceased not 
with his life, but was continued by an unusual testamentary pro- 
vision for those who were incapable of supporting themselves. 

With a cheerful temper, attractive manners, .snd a heart so 
full of kindness, he possessed every element for popularity, and 
might have a,cliieved high political distinction had he chosen 
the field of politics for the exercise of his great talents ; but he 
seems to have had no desire for the honors, emoluments, or ex- 
citements, of public life. He held no office but that of a dele- 
gate to the Convention of 1817, and sought but one other — that 
of delegate to tlie Convention of 1832. At this convention the 
important question of an elective judiciary was to be decided, 
and he entered the canvass in opposition to that measure, which 
he feared would drag the ermine through the mire of party 
f^trife, and prove fatal to the purity and eificiency of the bench. 
But, controlled by an intelligent suffrage, the election of judi- 
cial officers in Mississippi produced no such effect, but, on the 
contrary, proved, so far at least as the Supreme Court was con- 
cerned, an improvement upon the former system ; and it is a 
notable fact that the judges of the High Court were generally 
chosen from the political party then in the minority in the dis- 
tricts from which they were elected. 

In politics Mr. Davis was a disciple of Jefferson. With that 
creed he began his career, and from that faith he never swerved. 
Far-seeing and conservative in his character, he doubted the 
expediency of secession when it occurred, but never ques- 
tioned the right of a State to judge, in the last resort, of its 
wrongs, and the mode and measure of their redress. 

During the war he was driven from his home and property 
on the banks of the Mississippi, and, without complaint or an ex- 
pression of regret, procured a more humble residence in Hinds 



JOSEPH E. DAYIS. 77 

County ; but there, too, he was soon invaded, and tliere this 
feeble octogenarian, with none to sustain liim but an invalid 
wife, two helpless girls, and his faithful slaves, was made to 
feel the effects of that vengeful rapine which knew no age nor 
sex. When the purpose to burn down his house was an- 
nounced, he told the commanding officer that his wife was un- 
able to walk, and that she was in that house ; to which the brutal 
reply was, tliat the house would be fired in so many minutes. 
Amidst this heart-rending scene his faithful slaves came to his 
rescue, and tenderly and affectionately lifted the bed upon 
which Mrs'. Davis lay, and bore it far enough away from the 
house to be free from the danger of falling fire, where she 
remained until the enemy retired, after having plundered the 
premises. 

After many vicissitudes and hardships Mr. Davis returned, at 
the close of the war, to Vicksburg. The enemy still had pos- 
session of his plantation, from which his only revenue was de- 
rived, and by falsehood, artifice, and bullying, endeavored to 
exclude him, and deter him from asserting his claim to it. He 
preferred charges of falsehood and theft against the senior offi- 
cer of the Freednien's Bureau at Vicksburg, who had proposed 
to surrender his property for a pecuniary consideration, which, 
though small compared to its income, was to him an obstacle 
mountain-high in the principle it involved. In keeping with 
the courage, integrity, and self-denial, which had always char- 
acterized him, Mr. Davis rejected the proposition with indigna- 
tion and scorn, and, old and feeble as he was, defied them when 
they attempted to intimidate him by threats. He finally ob- 
tained possession of his property, but continued to reside in 
Vicksburg, in the midst of a large circle of relatives and personal 
friends. Here, like the Grecian sage, he had seen two genera- 
tions pass away whose polity was enlightened by his genius and 
whose welfare was promoted l)y his counsel, and now the third 
caught the inspiration of his example. The last remnant of a 
past and prosperous age, he lingered far behind the contempo- 
raries of his meridian manhood, and disappeared amid the dark- 
ness that had gathered over his country. He died in Vicksburg 
on the ISth of September, 1870, in the eighty-sixth year of his 



78 BENCH AND BAR OF MISSISSIPPI. 

age. His remains were borne down the river for burial, and 
when they reached the landing of the Hurricane, his former 
home, they were met by a large concourse of his former slaves, 
who, with loud lamentations, and bearing torches that sent a 
dismal glare through the darkness, seized the bier and bore it 
to the grave, where he was laid away by the side of his wife. 
He had watched with long and jealous care the growth and hap- 
py working of that system of jurisprudence which his services 
were so conspicuous in planting in Mississippi ; and his death 
deprived its people of the last of those who, when the State 
was a Territory, strove to develop its resources, to elevate its 
institutions of learning, and to give dignity and purity to its 
Bench and its Bar. 



CHAPTER IIL 



ORGANIZATION OF THE STATE GOVERNMENT— ITS JU- 
DICIAL ESTABLISHMENT — THE BENCH — EMINENT 

JURISTS— 1817-1832. 

JOHN P. HAMPTON EDWARD TURNER POWHATAN ELLIS JOSHUA O. 

CLARK JOHN TAYLOR JOHN BLACK RICHARD STOCKTON — JOSHUA 

CHILD — GEORGE WINCHESTER HARRY CAGE ISAAC R. NICHOL- 
SON ALEXANDER MONTGOMERY. 

In pursuance of an Act of Congress passed on the 1st day 
of March, 1817, a convention of delegates from the several 
counties of the western portion of the Missi6sij)pi Territory was 
convened, in the town of Washington, on the Ttli day of July 
in the same year, for the purpose of organizing a State Govern- 
ment. Of this convention David Holmes was chosen president, 
and a committee of one member from each county was appoint 
ed to prepare a constitution and form of government for the 
new State. On the 24th of July, the committee reported the 
result of its labors, and on the 15th day of August, after various 
amendments to the report, the convention adopted the first 
Constitution of Mississippi. 

This Constitution contained the following provisions, now 
unknown to our laws : 1st, It required a property qualification 
for holding office. 2d, It restricted the right of suflirage to 
those who paid a State or county tax. 3d, It declared that 
ministers of the gospel, being dedicated to God and the care of 
souls, ought not to be diverted from the great duties of their 
functions, and that, therefore, no minister of the gospel, or 
priest of any denomination whatever, should be^eligible to the 
office of governor, lieutenant-governor, or to a seat in either 
branch of the General Assembly. 4th, It permitted the estab- 



80 BENCH AND BAK OF MISSISSIPPI. 

lishment of State banks, and assigned no limit to the pledging 
of public credit or to the contracting of public obligations, ex- 
cept in regard to the appropriations for the army, which were 
limited to one year. The judicial power of the State was vested 
in one supreme court of appellate jurisdiction, which was to be 
held Ijy the district judges, and a superior court, to be held by 
one of these judges in each county ; but the judge of the 
superior court might not sit on the trial in the supreme court 
when his judgment in the court below was under revision ; but 
it was made his duty to report in writing to the supreme court 
the reasons upon which his decision was based. 

In 1821 the Legislature established a separate chancery ju- 
risprudence in the State. This act divided the State into two 
chancery districts, and provided for the appointment of a chan- 
cellor, to serve during good behavior. It also prescribed the 
rules of practice in this court, and defined its functions. 

In 1825 a special term of this court was provided for the city 
of Natchez, and Monroe County was erected into a separate 
chancery district. In 1827 this act was repealed ; the system 
of chancery was revised, and four chancery districts were 
formed. 

The Judiciary Act of 1818 created a county court, consisting 
of a chief and two associate justices, with the jurisdiction and 
cognizance of justices of the quorum ; and the Act of 1821 gave 
to one judge the powers of probate and the registry of deeds. 
In 1822 a county court was created, composed of a judge of 
probate and two associates, with limited original cognizance, 
but with appellate jurisdiction over the acts and decrees of the 
probate judge acting alone as the ordinary. 

By the Act of 1822 justices of the peace were made conserva- 
tors within their several counties, and were empowered to take 
all manner of recognizances for good behavior, or for appear- 
ance at the circuit court. They were authorized to issue war- 
rants for the apprehension of criminals, to take recognizances 
to answer, or to commit the ollender, and might issue search- 
warrants. They were required to take in writing the voluntary 
confessions of the accused and the testimony of witnesses, and 
certify the same to the circuit court. They might issue war- 



JOHN P. HAMPTON. 81 

rants of arrest in cases of removal or escape, and subpoenas for 
witnesses, in State cases, to any other county, but they were to 
be indorsed by a justice of the county to whicli they were 
issued. They niiglit also fine and imprison for contempt. 

Appeals from the justices' courts were required to be tried de 
novo and summarily in the circuit court, and a trial by jury was 
granted in all cases which involved more than twenty dollars. 

This system of judicature remained unaltered until the judi- 
ciary was remodelled under the Constitution of 1832. Let us 
now notice the eminent judicial functionaries of that period. 



JOHN P. HAMPTON. 

Judge Hampton, it is believed, was a native of South Caro- 
lina, and belonged to the family from which sprang the present 
eminent United States Senator from that State. He emigrated 
to the Mississippi Territory some time prior to the organization 
of the State Oovernment, and was the first Chief Justice of the 
State of Mississippi, having taken his seat at the opening of the 
court, in the spring of 1818. 

That he was a profound lawyer and able judge there can be 
no question. This is evident both from the fact of his elevation 
and the tenor of his decisions which are always marked with 
clearness, ci^mj^rehension, and a lofty and unswerving regard 
for equity and justice. One of the ablest decisions rendered by 
our early courts was delivered by Chief Justice Hampton in the 
case of Stark's heirs vs. Mather (Walker's R. 180). This was a 
case of conflicting tenures arising under different grants, one 
of which was made by Spain and the other by the Government 
of the United States. 

The court held that if the prior Spanish grant was a nullity in 
He for M'ant of power on the part of the Spanish Government to- 
effectuate it, yet, being embraced in the confirmatory provi- 
sions of the Georgia Cession, it was valid, and that (;qnsequently 
the subsequent patentee claiming under the United States was 
merely a trustee of the fonner grant. 

This decision was ably assailed by the distinguished Mr. 
G 



82 BENCH AND BAK OF MISSISSIPPI. 

Walker, in a note appended to his Keports, and the High Court of 
Errors and Appeals has since decided, in the case of Montgomery 
et al. vs. Ives et al. (13 S. & M.), that the confirmatory articles 
of the Georgia Cession did not relate to the dates of patents so 
as to give preference to the older ; that each patent took effect 
from the date of the cession, and they were therefore of equal 
dignity as regarded age, and that the confirmation of a void pat- 
ent does not, hy relation to its date, affect the rights of third 
persons. 

But if the (piieting clauses in the Articles of Cession had the 
effect of legalizing or ennohling the Spanish grant, and the 
quieting effect extended to actual possession under a hona fide 
title, the plaintiff being in such possession at the time of the 
treaty, it is diffi3ult to perceive what other effect the application 
of equity to the case would liave than that embraced in the 
opinion of the court, notwithstanding the technical remissness 
of the ]:)laintiff, upon which Mr. Walker, in part, bases his 
attack. 

Judge Hampton was prompt to animadvert upon every in- 
stance of moi'al turpitude that fell under his revision. In 
the case of Dismukes vs. Terry (Walker, 119), in which 
the gist of the defence was fraud, he said : " It is a subject 
of regret to the moralist that those of us who are called to 
the frequent investigation of controversies originating in the 
commerce of man with his fellow-men, and to peruse the his- 
tory of judicial proceedings as reported for centuries, have often 
to encounter instances of discrepancy in testimony so great 
that, after the most charitable allowance for misconception, im- 
perfection of memory, and involuntary prepossession, the mind 
perceives sufficient reason still to believe that there has been, 
on one side or the other, if not on both, a voluntary aberration 
from conscious truth. But should the present case jiresent any 
grounds for animadversion in this respect, so far as the defend- 
ant may be implicated, as to all, except what duty demands, I 
desire to stand reproved by a recollection of his fate, and 'to 
tread lightly on the ashes of the dead.' " 

So great was his reprobation of everything that savored of 
unfairness that, in the decision of the case of Frazer vs. Davis 



. JOHN P. HAMPTON. 88 

(Walker, 72), wliich, from the style, was evidently rendered by 
him, the conrt declared that if a person, in possession of a mere 
rumor that an article had risen in value, purchased it, without 
communicating the report to the vendor, the sale was fraud- 
ulent and void, as well in law as in equity. " It makes no differ- 
ence," said the court, " with what formality an obligation is en- 
tered into, if obtained by fraud, by a suggestion of falsehood, 
or suppression of the truth, it is void, and the party is not 
bound to perform." The enforcement of this principle to the 
extent inculcated in this case would certainly make a great rev- 
olution in the present prevalent system of traffic ; and it is a 
standard which practical morality has perhaps never yet attained 
in any community, and, it is feared, never will, until the pas- 
sions and frailties of men are subjected to more powerful moral 
influences than any human rule of conduct has yet been able to 
devise or enforce. 

" It would certainly be well," says Mr. Walker, in comment- 
ing ujion this case, " for the best interest of society, if the pure 
principles of morality inculcated in this case could be estab- 
lished as the laM"^ of the land, and practically enforced in the 
ordinary transactions of life ; but such a rule has been considered 
by many eminent tribunals as replete with difficulties." If a 
person should be required to furnish others with the benefits of 
his superior judgment, and the fruits of his alacrity, tact, and 
industry, on penalty of invalidating his contracts, it would oper- 
ate in our present state of society as a great clog to industry 
and enterprise ; but the effort to establish such an order of 
things, however futile in practice, was none the less creditable 
to the character of this eminent and justice-loving judge ; and 
his decision will, it is to be hoped, remain a beacon which, if it 
cannot be fully reached, will yet throw a vivifying light upon 
the moral features of our laws, and attract all future decisions 
of our courts, as far as practicable, in that direction. 

Judge Hampton continued as Chief Justice upon the su- 
preme bench until the year 1829, when he was succeeded by the 
Hon. Edward Turner. 



BENCH AND BAE OF MISSISSIPPI. 



EDWAED TUENEE. 

Judge Tiiraer was a native of Virginia, and was born in the 
county of Fairfax on the 25th of November, 1778. When but 
eight years old he moved with his father's family to Kentucky, 
where, after attending for several years the common schools of 
the country, he was sent to the Transylvania University, which 
he attended at intervals, as his time and means would permit. 
At this institution he obtained a knowledge of the higher 
branches of an Enghsh course, but did not study the ancient lan- 
guages, of which he was, throughout his life, totally ignorant. 
The assiduous and persevering character of young Turner soon 
attracted notice, and he was adopted into the family of the 
chief law professor of the university, and assigned to duty as a 
clerk in his office, in which jDOsition he began the study of law, 
and which, notwithstanding the death of his patron, which oc- 
curred soon after, he continued to prosecute with the most de- 
voted application and untiring energy, until the year 1802, at 
which time he emigrated to the Mississippi Territory, and at 
once began the practice of law in the city of Natchez, where 
his genial disposition and cordial manners gained foi- him a kind 
reception and professional encouragement. 

The Governor of the Territory became so much impressed 
with the worth of the young lawyer that he made him his aide- 
de-camp, and with this office he began those distinguished public 
services which rendered him so conspicuous in the annals both 
of the Territory and the State. He held this position but a 
short time before he was made clerk of the Territorial House of 
Eepresentatives, but continued to act also as the Governor's pri- 
vate secretary. In the latter part of the year 1802, he married 
a Miss West, of Jefferson County, where he made his residence 
and became clerk of the county court, but continued his prac- 
tice in other courts. 

In 1803 Mr. Turner received the Federal appointment of 
register of the land office and commissioner of lands for the 
Territory. This office he held until 1805, when, on being su- 
peiseded, he removed to the town of Greenville, in Jefferson 



EDWAED TUENEE. 85 

County. Here he continued his practice of law until ISIO, and 
then removed to Warren County, which he was elected, in the 
year 1811, to represent in the Legislature. About this time he 
lost his wife, but married again the next year. In 1813 he re- 
turned to Natchez and resumed the practice of law in that city, 
where he became also city magistrate and president of the board 
of selectmen. 

In 1815 he was elected to represent the county of Adams in 
the Legislature, and was re-elected for several terms. In 1815 
he was also appointed by the Legislature to prepare a digest of 
the statute laws of the Territory, which was completed and 
adopted in 1816, This digest contained all the statutes in force 
at that period, and was entitled " Statutes of the Mississippi 
Territory. ' ' This compilation was made in a masterly manner, 
and evinced on the part of the compiler a thorough knowledge 
of the Territorial laws, as well as judgment and skill in its 
arrangement. 

Judge Turner was a member of the Convention of 1817, 
which framed the State Government, rei)resenting Adams 
County in that body, and in which he took an active and lead- 
ing part. In 1818 he was elected to the first Legislature as- 
sembled under the State Government, and, with the exception of 
one year, continued a member of the House of Eepresentatives 
until 1822, during which time he was twice elected Speaker. 

In 1820 he was appointed Attorney-General of the State by 
Governor Poindexter. This office he held but a short time, 
when he was superseded by legislative appointment. 

In 1822 he was appointed- judge of the criminal court of 
Adams County, and in 1824 was, without solicitation, made a 
judge of the Supreme Court of Mississippi. 

In 1829 he became Chief Justice of the State, which position 
he held until superseded by the intervention of the amended 
Constitution of 1832, 

In 183-1 he was elected Chancellor of the State, which office 
he held until 1839, during which he greatly improved the chan- 
cery jurisprudence of the State. In 1840 he was again elected 
a judge of the Supreme Court to fill the vacancy occasioned by 
the death of Mr. Justice Pray, and at the expiration of the 



86 BENCH AND BAK OF MISSISSIPPI. 

term, in 1843, he was chosen, at the age of sixty-five, to the 
State Senate, to represent the district composed of the counties 
of Jefferson and Franklin. 

Through all this wide and varied theatre of public services 
and multiplicity of public duties, Judge Turner acted his part 
ably and faithfully. His snperb patriotism was a constant in- 
centive to all his energies ; and he possessed in a high degree 
those traits of character which engage confidence and respect. 
His industry was indefatigable, and so versatile was his capacity 
for usefulness that no sphere of public duty seemed foreign to 
its adaptation and perfect adjustment. He was a man of great 
integrity and purity of character, and his judicial career was 
marked with an uprightness, impartiality, and love of justice 
that invited a comparison to that of Sir Matthew Hale. Judge 
Turner was not a man of extraordinary natural endowments, nor 
were his general acquirements extensive. He was not consid- 
ered a profound lawyer. His life was too checkered and varied 
by the abstractions of public services for the requirements of 
that jealous science. Yet his energy, integrity, and sound views 
of justice and equity, made him an excellent judge. While he 
possessed no one dazzling feature of character, he presented that 
full round orb of virtue and usefulness, which is rendered reful- 
gent by its uniqueness and uniformity. He was a man of ex- 
emplary rectitude in all the relations of life : a kind husband, 
affectionate father, a warm friend, and a great favorite with 
the members of the bar. He was of a portly and commanding 
figure, and the qualities of his heart were vividly reflected in 
the kind and genial features of his countenance and in his affa- 
l)le manners. I will close this sketch of Judge Turner by in- 
troducing the following extract from the minutes of the Supreme 
Court. At the expiration of his second term as judge of the 
High Court, in 1843, he declined re-election, whereupon the 
members of the bar then in attendance upon the court held a 
meeting in Jackson, and, upon motion of Hon. William Yer- 
ger, resolved : 

" That the State of Mississippi is under many obligations to 
the Honorable Edward Turner for the many years of arduous 
labor he has devoted to her service, and for the distinguished 



POWHATAN ELLIS. 87 

example of purity, integrity, and patriotism wliicli lie has 
afforded to lier citizens. 

" That tlie members of this bar entertain the kindest feelings 
of attachment for the honorable, for the upright, the pure and 
impartial manner with which he has discharged the duties of 
his station as a jndge of this court. 

" That a copy of these resolutions be forwarded to Judge 
Turner, and that the same be published in the papers of this 
city, and of the cities of Natchez, Vicksl)urg, and Holly 
Springs, and that leave be asked to spread them upon the 
minutes of the High Court of Errors and Appeals." 



POWHATAN ELLIS. 

Judge Ellis was a native of Virginia, and emigrated to Mis- 
sissippi during its Territorial era. I have been able to ascertain 
nothing in regard to his early life or his antecedents prior to his 
appearance in Mississijjpi. He was a lawyer of repute in the 
Territory, and in 1818 was elevated to the supreme bench of 
the State, being one of the first judges of that court. This seat 
he held until the year 1825, when he was appointed by the Gov- 
ernor to fill the seat in the United States Senate which had been 
vacated by the death of Hon. David Holmes, and at the expi- 
ration of the term in 1827 he was returned to the Senate by 
election, which office he held until 1832. He was then ap- 
pointed judo;e of the Federal District Court, and afterward 
United States minister at the city of Mexico, whence he re- 
turned to Virginia, and died in the city of Richmond. 

The eminence of Judge Ellis was not due to any distinguished 
abihty. He was a man of ordinary talents and limited literary 
acquirements ; but he possessed great energy of character, a patri- 
otic spirit, and a cordiality of manners which insinuated him into 
popular favor. He had an air of bluster and boldnes^s in his 
bearing calculated to impress the ignorant with an idea of his 
superiority, and a self-complacency that won the admiration of 
the learned. 

But notwithstanding these peculiarities of his character, 



/ 



88 BEIS^CH AND BAE OF MISSISSIPPI. 

Judge Ellis was a pure and upright judge, and a popular and 
useful member of society ; true to liis friends and devoted to 
his official duties. He delivered more opinions than any other 
judge during the time he was upon the bench, and while he 
entered into no profound disquisitions or elaborate discussion 
of subtleties and technicahties, his decisions are illuminated by 
his integrity, and his conclusions are just and correct. 

He was never married, and was therefore somewhat unortho- 
dox in his views of the relations of husband and wife ; hence 
it may not be surprising to find him, in the case of Bradley vs. 
the State (Walker, 156), holding to the old feudal doctrine that 
a husband might chastise an obstreperous wife, provided he used 
a rod no larger than the thumb. 

One of the most conspicuous acts of Judge Ellis, while in the 
Senate of the. United States, was his vote with Mr. Benton, of 
Missouri, and Judge Smith, of South Carohna, against the ratifi- 
cation of the Treaty of 1828, establishing the boundary-line be- 
tween the United States and Mexico, which intersected the Eed 
and Arkansas rivers and brought a non-slaveholding power to 
the borders of Louisiana, and nearly to the boundary of Mis- 
souri ; which utterly deprived the slaveholding interest of what- 
ever advantages it obtained by the compromise measures of 
1820, and left to it no expansion but the Territories of Florida 
and Arkansas, 

Whether Judge Ellis and his two co- voters saw the full result 
of this treaty — the agitation that followed, and the Mexican 
War — or not, yet they are entitled to all the merit which a bold 
opposition to a most disastrous measure can bestow. But while 
the senatorial career of Judge Ellis was characterized by alert- 
ness and fidelity, it was during its latter part overshadowed by 
that of his brilliant colleague, George Poindexter. 



JOHN TAYLOR. 

The subject of this sketch was a native of the State of Penn- 
sylvania. He emigrated to Mississippi in the early days of the 
Territory, and settled in the county of Adams, which in 1811 



JOSHUA G. CLAEKE. 89 

he represented in the Territorial Assembly. He was also a 
member, from that county, of the Convention of 1817, which 
organized the State of Mississippi. 

In 1818 he was elevated to the supreme bench, from which 
he retired in 1822. 

It is difficult, if not impossible, at this day to ascertain more 
than the general character of many of the distinguished gentle- 
men who emerged from the dimly historic bar of the Territory 
into prominent places in the jurisj^rudence of the State ; and 
if Plutarch deemed it necessary to reside forty years in Rome 
to qualify himself for the task of writing the lives of some of its 
eminent citizens, surely the disparity of circumstances will avail 
as an excuse for the writer ; but from what we know of the 
eminent lawyers who were early attracted to this rich and 
blooming country, to achieve a prominent place among them 
required talents and learning of a superior order. 

There are but two reported decisions known to have been de- 
livered by Judge Taylor from the supreme bench — those of 
Delahuff vs. Reed, and Stockett vs. Nicholson (Walker's R., 74 
and 75), neither of which contains any features of special in- 
terest ; but there is no question that he was a lawyer of ability, 
and enjoyed a high judicial character. 

He seems to have possessed no political aspirations, and, 
although for several years a member of the Legislature, took no 
active or ardent interest in partyism or public affairs. He was 
thoroughly devoted to his profession, and, being a bachelor, 
his law books were the chief objects of his solace and comjian- 
ionship. He died in Natchez in 1823. 



JOSHUA G. CLARKE, 

Joshua G. Clarke was born and reared in the State of Penn- 
sylvania, and received a competent e(iVication. He appeared in 
the Mississippi Territory {it an early period in its history, and 
represented Claiborne County in the Territorial Legislature. 
He was also a member of the convention assembled in 1817 for 
the purpose of forming a State Government, and took an active 



90 BEXCH AND BAR OF MISSISSIPPI. 

part in the proceedings of that body. In 1820 he was j)ronioted 
to a seat upon tlie supreme bench of Mississippi, and in 1821, 
upon the establishment of a separate chancery system, he was 
appointed the first Chancellor of the State, and held that office 
until the year 1827. 

Judge Clarke was a lawyer of ability, and a man of sterling 
qualities. He possessed in a high degree that placid temper and 
amiable patience which comport so compatibly with the requisite 
character of a good chancellor and just judge ; and it is to be 
regretted that his decisions have not been preserved. His learn- 
ing and integrity first directed our system of equity jurispru- 
dence into those channels through which it has flowed with in- 
creasing volume and utility. His career upon the supreme 
bench, though short, gave eminence to his judicial character. 
His opinions are marked with learning, dignity, and force ; and 
had he lived longer his usefulness would have, no doubt, in- 
creased with his years. He died at Port Gibson in 1828. 



JOHN" BLACK. 

Judge Black was born and reared in the State of Massachu- 
setts. He emigrated to Mississippi about the time of the or- 
ganization of the State Government, and in 1826 was appointed 
one of the judges of the Supreme Court. This office he held 
until the year 1832. He was then appointed to succeed the 
Hon. Powhatan Ellis in the Senate of the United States, and in 
1833 was elected under the new Constitution for a full term. 

Judge Black was evidently a lawyer of much ability, and one 
of the ablest judges whose opinions are reported by Mr. Walker. 
It is from these mostly that I have been able to judge of his 
'legal and judicial character. His decisions are lucid, teise, and 
logical, and evince a perfect familiarity with the settled princi- 
ples of law. II is course in the United States Senate was at first 
distinguished for a nuirked devotion to the interest of his State 
and section ; but his subsequent opposition to some of the 
measures of Jackson's administration caused him to become 
unpopular with his constituency, and, on the 28th of January, 



JOHN" BLACK. 91 

1835, the Mississippi House of Kepresentatives, by a vote of 38 
to 13, passed the following resolutions : 

" Wkev'ias, We regard it as a fundamental axiom in our sys- 
tem of government, that all power and political right is inherent 
in the people ; that the government, both State and Federal, 
was only instituted for their good ; and that in adopting our 
republican form of government the object was to select that 
which would best subserve their wants, wishes, and interests, 
with the least trouble and burden to themselves ; from which it 
necessarily results that those to whom power or authority is 
delegated or intrusted ought only to exercise or use it in ac- 
cordance with the opinion of those for whom they hold it, 
whenever that oi)inion can be ascertained ; 

^' And whereas, The Hon John Black was elected by this 
Legislature a Senator to the Congress of the United States, 
under the avowed pledge and promise of sustaining the princi- 
ples of the present administration, by which we understood he 
would, by his vote and by his influence, support our President, 
Andrew Jackson, in his efforts to preserve and protect the 
Government from the influence of a corrupt and powerful 
moneyed monopoly in the Bank of the United States, and a 
prodigal expenditure of the public treasure to objects of doubt- 
ful constitutional purposes, and a tariff of protection and mo- 
nopolies — all equally tending to consolidation ; 

" And whereas, The said Senator has upon various occasions 
violated the pledges which he had given to the people of this 
State, previous to his election, and more particularly in his votes 
on various occasions in the Senate of the United States in re- 
lation to the Bank of the United States, and especially that 
which he gave in voting for the resolution passed in that body 
on the 2Sth day of March last, in which the President is 
charged with having assumed to himself authority and power 
not conferred by the Constitution and laws, but in derogation 
of both ; and also because we believe that he has joined the 
party opposed to the present administration, and to the best 
interest of this State ; therefore, 

" Jiesolved, That in the opinion of the House of Representa- 
tives of this Legislature, our Senator, the Hon. John Black, has 



92 BEIs^CH AND BAK OF MISSISSIPPI. 

unfaithfully represented the people of this State ; and that it is 
an oblio-ation which he owes to them to vacate his seat in the 
Senate of the United States, by resigning, and that he be in- 
vited to do so. 

" Resolved, That our Senators in Congress be instructed to 
vote for rescinding from the journals of the Senate the resolu- 
tion passed on the 28th day of March last, in which the Presi- 
dent is charged with exercising powers not granted, in relation to 
the public deposits. 

''Resolved, That a copy of these resolutions be transmitted 
to each of our Senators in Congress, to the President of the 
United States, and to the Governors of each of the States and 
Territories." 

Notwithstanding this censure and request, it seems that Judge 
Black did not see proper to comply until two years after, when 
he resigned his senatorship and resumed his practice of law. 
Waiving the delicate question of instruction to Senators, and 
admitting the right of non-compliance when the requirements 
are contrary to conviction, it is difficult to account for this te- 
nacity of Judge Black, under the circumstances. Yet such is 
the record of the matter. 



RICHARD STOCKTON. 

Judge Stockton was born and reared in the State of New 
Jersey, and received a finished education at Princeton, where 
he received the first honors. He belonged to the same family 
from which sprang the United States Senator of that name. 
Judge Stockton was an eminent lawyer and a man of ability. 
He was remarkably modest and unassuming in his manners. 
He became a judge of the Supreme Court of Mississippi in the 
year 1822, and resigned in 1825, when he was immediately 
chosen Attorne^^-General, and held that office two yeai-s. He 
delivered no opinion of tlie court while he sat upon the bench. 
His resignation took place under the following circumstances : 

In 1824 the Legislature of Mississippi passed an act in the 
nature of a Stay-law, and entitled " An act for the further relief 



EICIIARD STOCKTON. 93 

of debtors." This act provided that if property, taken in 
execution, should not, when offered for sale, bring two-thirds 
of its previously appraised value in cash, the sheriff should 
proceed to sell the same on one year's credit. 

In pursuance of the provisions of this act, the sheriff of Clai- 
borne County had levied upon and caused property to be duly 
appraised, and failing to receive at the sale a cash offer amount- 
ing to two-thirds of the valuation, proceeded to sell the same on 
one year's time, taking bond and security, which he returned 
into court. 

Upon this a motion was made before the Circuit Court, Judge 
Stockton presiding, to fine the sheriff" for " undue return and 
false return." Judge Stockton declined to decide upon the 
legality of the return made by the sheriff, but referred the cause 
to the Supreme Court, which sustained the motion, and caused 
judgment and a fine of one hundred dollars to be entered 
against the sheriff for making " undue and false return." 

Upon this the House of Representatives, at the next session, 
1825, passed a resolution requiring the sergeant-at-arms to no- 
tify the judges of the Supreme Court to appear at the bar of 
the House and show cause why they should not be removed from 
ofiice in consequence of their decision in regard to the " Debt- 
or's Act." 

In obedience to this summons. Judge Stockton appeared at 
the bar of the House, begged leave to exhibit, in writing, a 
plain and succinct statement of the case as decided by the Su- 
preme Court, and submitted the question to the determination 
of the House, whether the judges, in rendering their opinion, 
had been governed by impure motives, or had decided accord- 
ing to established law. 

The position taken by the Supreme Court in this case was : 
That as the original execution was issued, levied, and executed, 
and a forthcoming bond taken and forfeited previous to the 
enactment of the " Debtor's Law," the sheriff should have 
sold upon the forfeiture of the forthcoming bond, according to 
the provisions of the statute ; that, by taking different security 
from the original security contained in the judgment, he vio- 
lated the, obligation of the contract, made a new one between 



94 BENCH AND BAR OF MISSISSIPPI. 

the parties, not known to them at the time of the original under- 
taking, at the time of the judgment, at the time of the serving 
of the execution, and at the time of the forfeiture of the forth- 
coming bond taken, under act of the Legishiture, on the first 
execution ; that, by giving an additional credit of twelve 
months after the first suit had been prosecuted to judgment, 
levy, and forfeiture of the forthcoming bond, and after execu- 
tion had been issued according to law upon that forfeiture, and 
accepting as security the notes of persons different from the 
original contracting parties, he not only impaired the obligations 
of the contract, but entirely exonerated the original parties 
from any further liability. 

In support of the decision of the Supreme Court in this case. 
Judge Stockton cited the following precedents, which he said 
were all that he could recall to memory, or gather from the 
limited libraries at that time in Jackson : 

" No State shall pass any law impairing the obligations of con- 
tracts." Constitution United States, Art. I., Sec. 10. 

" The State shall pass no ex post facto law, or law imjDairing 
the obligations of a contract." Constitution of Mississippi. 

" Any law which releases apart of the obligation of a con- 
tract must literally impair it." 4 Wheaton, 197. 

" One of the objects of the Constitution was to remedy evils 
which had grown up in the several States, among which was 
that of extending by law the time of payments stipulated in the 
law." Ihid., 204. 

"The convention meant to declare contracts inviolable." 
Ihid. 

" The objection to a law, on the ground of its impairing the 
obligation of a contract, can never de]3end on the change which 
the law effects in it. Any deviation in its terms, any post- 
ponement or acceleration of the period of performance, which 
it prescribes, imposing conditions not expressed in the contract, 
or dispensing with those that are, however minute or ap- 
parently immaterial in their effect upon the contract of the 
parties, impair its obligation." Green vs. Biddle, 4 Wheaton, 
U. S. Reports. 

The law of North Carolina, passed during the war of 1812, 



KICHARD STOCKTON. 95 

giving a stay of one term, declared unconstitutional, 4 
Wheaton, 186 ; 5 Hall's Amer. Law. Jour. 

A law of a similar nature enacted by the Legislature of Ken- 
tucky pronounced unconstitutional. Blair 'y^. Williams ; Lapsley 
m. Brazier, Ky. Reports. 

The committee propounded to Judge Stockton the following 
questions : 

" Was it the opinion of the Supreme Court that any officer, 
executive or ministerial, can be punished for executing a law 
before the same had been declared unconstitutional by the 
court ? 

" Was it the opinion of the Supreme Court that the court had 
a right to make such a declaration of the unconstitutionality of 
a law as to suspend its operation ; and would the court have 
justified any ministerial officer for refusing to execute the same 
law after such declaration ? 

" Was it the opinion of the Supreme Court that the whole 
of the seventh section of an act entitled ' An act further to ex- 
tend relief to debtors ' was unconstitutional ; or if only a part 
of the section, what part ? 

" Was it the opinion of the Supreme Court that the seventh 
section was unconstitutional as to all contracts, or to such only 
as had been entered into previous to the passage of the law ? 

" Was it the opinion of the Supreme Court that the court had 
power and right to declare an act of the Legislature unconstitu- 
tional ; if so, from whence does the court derive its power : 
was it expressly delegated or implied, or was it from common 
usage ?" 

These questions were submitted to Judge Stockton in writ- 
ing, and to which he made the following written reply, ad- 
dressed to the chairman of the committee : 

" After requesting you to accept for yourself, and expressing 
for me to the other gentlemen of the committee, my sincere 
thanks for the very handsome and delicate manner with which 
they have treated me throughout the whole of this investiga- 
tion, to their inquiries I respectfully answer : 
" As to the first of the inquiries, 
" The question before the Supreme Court was, whether the 



06 BEXCH AND BAE OF MISSISSIPPI. 

sheriff should be fined one hundred dollars, according to the 
statutes, for failing to make a due return upon the execution, 
and for having made a false return thereon. The motion to fine 
the sheriff was in strict conformity to the statutes, and the com- 
mittee have, already, the opinion of the court in writing. 

" Upon the second inquiry : The question was not made be- 
fore the Supreme Court. 

" Upon the third and fourth inquiries : The opinion of the 
Supreme Court, which is in possession of the committee, was that 
it was unconstitutional as to all contracts made previous to the 
passage of the law. That the court was not called upon to give 
any abstract opinion upon any question not immediately before 
them ; but if the committee were desirous of ascertaining what 
his private opinion was, that while he was the junior member 
of tlie bench, he would give it with great cheerfulness, and 
assure them that the other members of the bench joined him in 
oj)inion ; although, from the case before them not requiring it, 
no official promulgation was made." 

But the character of the case was certainly very much 
changed by these proceedings ; and it is strange that Mr. 
Walker did not report it for its importance, not only in conse- 
quence of the difliculty it produced between the Legislature and 
the Supreme Court, but also on account of the principles which 
it involves. 

It seems, however, that the committee were dissatisfied 
with both the reason and the result, and reported that, on a re- 
view of the case and the proceedings of the Supreme Court, 
they believed that the opinion of the court, as to the constitu- 
tionality of the law, was erroneous ; and that, in regard to the 
fine imposed upon the sheriff, they did not hesitate to say it was 
unjust and illegal ; that they could not believe that any subor- 
dinate officer ought to be punished for executing any process 
which emanated from competent authority ; that it loas his 
duty to execute it, and not to judge of its legality / that they 
knew of no power, either delegated or implied from the Con- 
stitution, that authorized the Supreme Court to make such a 
declaration of the unconstitutionality of any law as to suspend 
its operations ; but that they were constrained to believe that 



EICHAUD STOCKTON. 97 

sucli power was assumed and maintained on tlie grounds of 
judiciary precedent alone. 

That they held it to be of the greatest importance that the 
several departments of government should be separate and dis- 
tinct ; and that they should, at the same time, harmoniously 
co-operate in the great object of true governmental policy — the 
common good — and they expressed the lioj^e that all into whose 
hands were committed such important trusts wpul-d execute 
them with caution, so as to avoid collisions, unless impelled by 
the most serious necessity. 

That they could not, for a moment, entertain an idea that 
the Supreme Court were influenced in their decisions by any 
impure motive, and invoked the Legislature to determine the 
question with such firmness as should forever secure the rights 
and interests of the community, and, at the same time, with 
that justice, liberality, and respect which is due to those to 
whom was committed the administration of the laws. 

And that, as it was manifestly unreasonable and unjust that 
subordinate officers should be subjected to penalties for executing 
a law enacted by competent authority, it was therefore recom- 
mended to the House to instruct the Judiciary Committee to 
prepare and report to the House a bill providing against that 
evil. 

This report was received and laid on the table, and on the 
same day Judge Stockton tendered his resignation, as a judge of 
the Supreme Court, to the Speaker of the House. He after- 
wards removed to New Orleans, and was killed in a duel there 
in the prime of his life. 

This deplorable end will present itself to the reader more 
than once in tracing the biographies of eminent gentlemen of 
the Mississippi bar, and it is to be regretted that the custom of 
duelling has hitherto, especially in the South, l)i(lden defiance 
to the restraints of every law enacted for its prevention. In- 
deed, the only efficacy of duelling laws seems to rest in an ap- 
peal to honor, by throwing difficulties in the way of the ordeal, 
and attaching to it consequences to which men of honor will, 
under ordinary circumstances, hesitate to subject an adversary 
by sending a challenge. This is particularly the case among the 
7 



98 BENCH AND BAR OF MISSISSIPPI. 

officers of the United States army, who are promptly dismissed 
from the service for accepting, as well as for sending, a chal- 
lenge ; and the laws of Mississippi attach a similar consequence, 
in like instances, to the members of the bar ; but while the 
army regulations can be promptly and vigorously enforced, it is 
dirticult, in view of public sentiment, to punish a duellist 
through the courts. But even the certain action of military 
law has not been sufficient in all cases, and was unable to 
prevent the fatal conflict between such men as Commodores 
Decatur and Barron. 

The method of prevention adopted by Gustavus Adolphus, 
King of Sweden, is, perhaps, the only one which would prove 
positively effectual. On hearing that two officers of his army 
were about to fight a duel, he directed that it should be fought 
iu his presence. The parties appeared on the ground, and their 
sovereign also, according to his promise ; but to their astonish- 
ment they observed a gallows erected on the spot where they 
were to fight. " Commence your battle as soon as you please,- ' 
said the king ; " but," he added, pointing to the gallows, " I 
am resolved that the victor shall be hanged by the neck, and 
the vanquished by the heels." Each one, greatly dismayed at 
being confronted with such terms, retired in silence, and soon 
after began a very intimate friendshij), which continued through 
life. 

But while duels often occiir under the most deplorable cir- 
cumstances, and Hamilton ! Hamilton ! has resounded from the 
Adirondacks to every corner of the continent, it cannot be denied 
tliat the very existence of the custom exerts an elevating infiu- 
once upon the tone of society, by causing gentlemen to have a 
more careful regard for the feelings and honor of each other. 
Who can determine the salutary influence of the duel between 
Mr. Clay and Mr. Randolph upon the etiquette of Washington 
society ? And what would be the state of parliamentary ethics, 
at this day, in the Congress of the United States, where party 
faction, sectional antipathies, and personal prejudices, continu- 
ally seethe in a caldron of conflicting elements, were it not for 
the menace of prompt and effectual accountability on the field of 
honor ? The effect of the duello on society is not in its con- 



JOSHUA CHILD. 99 

summation, but in the preventive virtue of its existence. It 
places the weak upon a clear-cut and well-defined equality 
with the strong, in seeking tlie redress of wrong, and enforces 
the golden rule in spite of selfishness, insolence, and all tlie 
frailties of human nature. And while a predominant gusto 
for the vindication of honor, or, as Yirgil calls it, (jaudiuifii 
certaminis, should be discountenanced, yet, when a j^romptness' 
to resent a real wrong is associated with magnanimity, it must 
be acknowledged to be a kind of coefficient of manhood — an 
index to inscriptions which we admire upon the tablet of even 
the heart of a savage. While the institution of chivalry, as it 
existed in the middle ages, has long since been borne down by 
the heavy tread of a cold asceticism, and our society bears but 
little analogy to the scenes of Ivanhoe or the days of Richard 
Ooeur de Lion, the duello, in spite of all regrets and denuncia- 
tions, will continue to give tone to the upper circles of Southern 
society so long as Southern honor maintains its historic standard. 



JOSHUA CHILD. 

Judge Child was a native of New England, where he had 
been well educated in the various schools of science be- 
fore entering upon the study of law. He appeared in Missis- 
sippi about the time of the State organization, and practised 
his 2^1*0 fession in the city of Natchez. His thorough ed- 
ucation and the natural vigor of his mind enabled him to 
achieve a rapid j)rogress towards eminence in his profession. 
He was soon accounted an able lawyer, and in 1825 was pro- 
moted to the supreme bench. About this time, however, he 
began to }ield to a propensity to drink, which his sociability and 
natural ardor of temperament greatly aggravated. 

There are many disgusting incidents of this character related 
of Judge Child, which were said to have occurred in the various 
counties of his circuit. It is related of him that on one occa- 
sion, in one of the border counties, while under the infiuenco of 
drink he became angry with some of the members of the bar, 
and to vent his rage, at the close of the term he ordered an ad- 



100 BENCH AND BAE OF MISSISSIPPI. 

jonrnnieiit, momited his liorse, and rode away without signing 
the minutes of the court. 

Judge Child was never married, and strongly manifested tlie 
peculiarities usually belonging to those who grow old in celib- 
acy. He was a man of courage, and engaged in a duel with 
General Joor, upon terms of bitter desperation, and in which 
both parties were severely wounded. 

His opinions from the bench were delivered in a lucid, terse, 
and forcible manner, free from all prolixity or effort at dis- 
play, and resting upon the authority of tlie court rather than 
upon an array of reported decisions. 

He was fond of exhibiting his authority, at times excessively 
satirical and somewhat overbearing ; hence he was not very 
popuhir witli the members of the bar. Judge Child resigned 
his seat in 1831, and died not long afterwards. 



GEORGE WINCHESTER. 

' Judge Winchester was a native of Massachusetts, and was at- 
tracted, like many other young lawyers of talent and ambition, 
by the flush times that followed the admission of Mississippi 
into the Federal Union. He was well educated, having gradu- 
ated at Harvard College ; a good linguist, possessed an attractive 
polish of manners, a prepossessing appearance, and a mild and 
genial disposition. 

His assiduity and superb natural talents soon procured for 
him a high reputation as a lawyer. His polished elocution and 
urbanity gained for him great success as an advocate, wliile the 
sul)tle penetration and elastic vigor of his mind enabled him to 
anticipate and disarm his adversaries, and fortify his side of the 
question with ingenious applications and interpretations of the 
very law.relied upon to confound him. 

Judge Winchester was seated upon the supreme bench in 
1820, and held that position until 1829. He then resumed 
his practice of law in the city of Natchez. He was an able and 
eloquent judge, fond of elaborating subtleties of law and fact, 



GEORGE WINCHESTER. 101 

and of marslialling- every feature of a case that entered into the 
formation of his opinion. 

It is said that on one occasion, after he liad retired from the 
supreme bencli, he was engaged before tliat tribunal in a case 
involving a large amount, and wliich had been pending for 
many years, and after the arguments had been conchided the 
court decided in liis favor, l)ut not on the grounds upon wliich 
he had rested, whereupon he promptly moved the court for a 
rehearing. 

He was not willing to accept the affirmance in his favor un- 
less it was the result of what he conceived to be the proper 
views. In politics Judge Winchester belonged to the ultra 
State Rights scliool, and jn'esided over the Southern Rights 
Convention, held at Jackson in 1849 for the purpose of adopting 
measures to resist the encroachments of the anti-slavery party, 
and was the author of the resolutions adopted by that body. 

Judge Winchester was never married, and, like Judge Child, 
possessed many of the eccentricities of protracted bachelorhood. 
He had a most tenacious memory, and retained even in old age 
the results of the training of his youth. He died in February, 
1851, old in years and full of honors — the meed of a well-spent 
and serviceable life. 

At a meeting of the bar of Adams County, convened at the 
Court-house, February 5th, 1851, on the occasion of the deatli 
of Judge Winchester, and for the purjjose of paying a suitable 
tribute of resj^ect to his memory, the following ^proceedings 
were adopted : 

" Resolved, That the members of the bar attend the funeral 
of the deceased, to be solemnized this evening. 

" Resol/vedy That a committee, to consist of five, be appointed 
to draft and report resolutions appropriate to the occasion. 

''The chairman appointed Messrs. S. S. Boyd, J. T. McMur- 
ran, Thomaa B. Reed, H. S. Enstis, and Ralph Xortli said 
committee, to which the chairman was added, and which re- 
ported the following resolutions : 

" Resolved, That we have learned, with feelings of the deep- 
est emotion, the death of our friend and fellow-laborer, George 
Winchester. That, whilst the severe labor of a lifetime, guided 



102 BENCH AKD BAE OF MISSISSIPPI. 

by a calm, clear- siglited understanding, has built up for bini a 
reputation as a lawyer to which we can add nothing by the 
public tribute of our respect, it gives us pleasure to bear tes- 
timony with one accord to his endearing virtues as a man — to the 
largeness of that heart, ever guileless and benevolent, which, in 
the familiar intervals of his life, was filled with good deeds and 
generous impulses. 

' ' That it may profit us to remember that the same intellectual 
excellence which swayed the bench and ' propped the country's 
cause,' also reasoned out for him the truth of revelation, and 
enrolled our friend witlj the defenders of our faith, whose life 
' allured to brighter worlds, and led the way.' 

" That Messrs. Eustis, McMurran, and Hewett be and they 
are hereby appointed a committee to take the necessary steps 
for the erection of a suitable monument over the grave of the 
deceased. 

" Which report was unanimously adopted ; and on motion it 
was. then 

'"^Resolved. That the j)roceedings of this meeting be report- 
ed by the chairman thereof to the Circuit Court of Adams 
County, at its next term, and that the chairman move the court 
to cause these proceedings to be spread upon the minutes of 
said court." 



HAERY CAGE. 

The subject of this sketch was a native of Tennessee, and be- 
longed to a large and highly respectable family. His early ed- 
ucational advantages were limited, and he never acquired attain- 
ments sufficient to characterize him as a profound lawyer or man 
of learning. He emigrated to Mississippi about the time of the 
formation of the State Government, and in 1829. was elected 
to a seat upon the supreme bench, which he held until the re- 
organization of the courts under the Constitution of 1832. He 
was then elected to Congress, in which he assumed an active part 
in the exciting discussions of the period. In 1834 he resigned, 
and retired to his plantation in Louisiana, where he died. 



ISAAC R. NICHOLSOK. 103 

Judge Cage owed liis success more to his vivacity and con- 
geniality of disposition than to any professional qualifications.' 
He possessed social qualities of the highest order. Full of life 
and anecdote, he was the central figure of every social circle, 
while his ready wit and apt repartee, together with his easily 
aroused sympathies and power of feeling, gave him considerable 
forte in the art of persuasion. 

While he seems to have had but little relish for office, he 
was yet evidently more of a politician, both by nature and by 
culture, than a lawyer. He is said to have been fond of miscel- 
laneous and light literature, such as was congenial to his face- 
tious taste and furnished him with tales of humor and anecdote. 
His manners were kind and unassuming, but his gentle and ami- 
able disposition reposed upon a spirit of indomitable courage. 

As a judge he was conscientious and upright, patient and 
polite in his audience, and accorded a courteous consideration to 
all who approached him. He was, moreover, of an energetic 
and enterprising nature, sincere and manly in his bearing, and a 
general favorite with the members of the bar. 



ISAAC E. NICHOLSON. 

Isaac R. Nicholson was a native of Georgia, whence he emi- 
grated to Alabama, and practised law in the northern part of 
that State, where he achieved success and reputation. He then 
removed to Mississippi, and in its rich field soon rose to emi- 
nence in his profession. 

He was a man of limited education, and was possessed of no 
remarkable natural endowment, unless it was that of an inex- 
haustible business capacity. For many years he represented the 
county of Copiah in the Legislature, and in 1827 was chosen 
Speaker of the House of Eepi-esentatives. Here his ofllcial de- 
votion and business tact served to promote his pojDularity and 
open the way to his judicial elevation. 

In 1S29 he was appointed to the supreme bench, but was 
superseded by the intervention of the Constitution of 1832, 



104 BENCH AND BAE OF MISSISSIPPI. 

under which the entire judiciary system of the State was re- 
modelled. He then resumed his practice at the bar of Natchez, 
where he resided until his death, which occun-ed at that place. 

While Judge Nicholson might not have been a profound law- 
yer, he was a successful practitioner ; if not perit us Jure, he was 
familiar with all the features of practice and the principles of 
justice, and superseded by a sound judgment and studious ac- 
curacy the advantages of greater depth and latitude. 

As a judge his decisions are terse and forcible, firmly fixed 
upon the points in question, and logical to a certain intent. In 
consequence of his industry, his accurate perception, and his 
fidelity to his ofiicial duties, Judge Nicholson was called upon 
to decide many of the cases in our early courts, and in which 
many important questions were involved, some of which were 
then discussed, perhaps for the first time in this country. 

In the case of the State vs. Johnson (Walker, 392), he dis- 
cussed and adjudicated the question which had been long agitated 
by the courts, both in this country and in England, as to the dis- 
qualification and competency of jurors. The j^oint in contro- 
versy arose from the form of the question put to a juror on his 
voir dire in the court below. He was asked if he had " formed 
or expressed an ojDinion," instead of " formed and expressed." 

The following decision of Judge Nicholson in this case is in- 
troduced as an indication of his manner of treating a question, 
and on account of the rarity of its accessibility, in consequence 
of the scarcity of Walker's Peports : 

" The old English authorities lay down the rule that, to in- 
capacitate a juror for sitting upon the trial, he must have 
formed and expressed his opinions against the accused, with 
malice or ill-will. This rule has been much softened ; and, in- 
deed, such is not the doctrine of the courts of this Union. Al- 
though the common law is opposed to trying an individual by 
men who have prejudged his case, yet, in most of the States 
of the American Union, we have constitutions which guarantee 
to the accused a fair and impartial trial. 

" By the Constitution of Mississippi (Declaration of Rights, 
Sec. 10), a speedy public trial by an impartial jury of the 
county is given to the accused. But how are we to ascertain 



ISAAC E. NICH0LS0:N'. 105 

the fact whether a juror stands indifferent between the parties ? 
This ninst be drawn either from the juror on his voir dire, or 
shown bj evidence aliunde. 

' ' I believe the first decision on this subject, in the American 
courts, is to be found in the trial of Colonel Burr for high trea- 
son. The decision of Chief Justice Marshall in that case has 
been looked to by the State courts as the pole-star by which 
they were to be guided. 

"• Judge Marshall says (Burr's Trial, 1 vol., 4J:) that ' to have 
formed and delivered an opinion, was sufficient to exclude 
from the jury, but that slight impressions on the mind are not 
sufficient. ' 

" In the case of Yermilyea, ex parte (6 Cowan, 563), Mr. 
Justice Woodworth says that 

" ' To have formed and expressed an opinion from a knowl- 
edge of the facts is good cause of challenge, and it cannot be 
material from what source the knowledge was derived ; if the 
bias proceeds from a preconceived opinion, it equally affects the 
accused. ' 

" Chief Justice Spencer, in the case of Vanalstyne, decided 
that ' if a juror had formed and expressed his opinion from a 
knowledge of the facts, or from the information of those ac- 
quainted with the facts, it was good cause for challenge ; but if 
the opinions of jurors were formed on mere rumors and report, 
such opinions were not sufficient to disqualify.' On the appli- 
cation for a new trial in the case of Fries, Judge Iredell put the 
question on the ground that ' w^ienever a predetermined opin- 
ion is formed, from whatever motives, it creates an improper 
bias, extremely difficult to get rid of ;' and the same doctrine is 
lield by Mr. Justice Maxey, in the case of the People vs. Ma- 
thew (4 Wendell, 229). 

" The rule then, to be drawn from these authorities, I think, 
amounts to this : that if the juror has made up and expressed 
an opinion, either from a knowledge of the facts or from the 
information of those acquainted with the facts, or a decided 
opinion from reports, he does not stand indifferent between the 
parties, and should be excluded from the jury ; and the situa- 
tion o'i the juror must be ascertained by triers appointed for 



106 BENCH AND BAK OF MISSISSIPPI. 

that purpose, or by the court ; and when referred to the court it 
stands as a demurrer to evidence. 

" In the case of Flowers, decided in this court at the Decem- 
ber Terra, 1829, 1 am satisfied that I went too far in layine; down 
the rule with respect to the examination of the juror on his voir 
dire. I there stated that if the juror, on being interrogated, 
answered positively and affirmatwely that he had formed and 
expressed his opinion, the court should set him aside without 
further inquiry. Since the decision of that case I have pre- 
sided on tlie circuit at the trial of seven capital cases, and expe- 
rience has fully satisfied my mind that jurors frequently answer 
the question without understanding its true meaning. It is fre- 
quently the case that a juror who has barely heard the case 
from report, and has but a slight impression on his mind, will 
answer, afiirmatively, that he has formed and expressed opin- 
ions ; but upon further examination it will be discovered to 
amount only to a hypothetical and not a decided opinion. In 
fact, there are but few jurors who understand the difference 
between a fixed and predetermined opinion and a hypothetical 
one. Besides, much is often ascertained from the manner in 
which the juror answers the questions : whether he shows sober 
indifference, an agitation of feeling, or signs of ill-will. In fact, 
it is almost impossible, from the nature of things, to lay down 
any invariable rule on this subject. From the necessity of the 
case, much must be left to the discretion of the judge, who is 
' />r6) hac vice ' of counsel for the accused, to see that he has a 
fair and impartial trial. 

" In this case the juror was asked whether he had formed or 
expressed, instead of formed and expressed, an opinion that 
would have any influence on his mind in the determination of 
the case as a juror. 1 have notbeen able to find a solitary case, 
in the American decisions, where the form of interrogatory has 
been practised upon, which is set forth in this bill of excep- 
tions. 

" The reason given in the books for the conjunctive form of 
interrogatory is that a man who has made up his opinion, and 
expressed it aloud, will be much more apt to adhere to it than 
if he had only formed it and kept it concealed. 



ALEXANDER MONTGOMERY. 107 

" This reason is not satisfactory to my mind. I think if a juror 
has made np a fixed opinion from a knowledge of the facts, al- 
thongli he has kept that opinion locked up in his own breast, 
he is not a competent juror ; but if he lias only fashioned in his 
mind an opinion from report, and has not given utterance to 
that opinion, it would not be sufficient to exclude him. . 

" An impartial juror is one whose mind is open to receive the 
impressions to be made by the testimony ; one whose mind is 
poised upon the scales of indifference, and capalile of weighing 
the testimony adduced on trial in opposition to floating ru- 
mors. ' ' 

Yet, with all dvie respect to the opinion of the learned judge, I 
must subjoin that it is difficult to perceive how any honest juror 
could be hindered in forming a true opinion from the true state 
of facts, by reason of a prior expression of an opinion " only 
fashioned in his mind" from mere rumor and report. The 
implication of this doctrine would assert that honesty must be 
sacrificed to a mere specious assumption, and the justice of 
conscience rendered subservient to a repugnant consistency. 
It would, in short, disqualify a very large majority of men 
for sitting upon an honest jury — a conclusion which if based on 
other grounds might not be far from the truth ; for an even- 
handed dispensation of justice under all circumstances is per- 
haps the most difficult task ever imposed upon frail humanity, 
and one in which none but the hand of Heaven is infallible. 



ALEXANDER MONTGOMERY. 

The subject of this sketch was born and reared at Natchez, in 
the Mississippi Territory. He possessed a brilliant intellect, 
and after having obtained the best education that the schools of 
his native town could afford, he applied himself to the study of 
law, which he prosecuted with such diligence and thoroughness 
that he became one of the most learned and profound lawyers at 
the bar of Mississippi. He had a peculiar aptitude for his pro- 
fession : a keen sense of duty, a natural energy of temperament, 
and an inquisitive turn of mind that always descended into 



108 BENCH AND BAE OF MISSISSIPPI. 

the very depths of investigation. He was not so much distin- 
guished for any one predominant quality as for a copious blend- 
ing of all such as enter into tlie character of a justly eminent 
lawyer. He devoted all his mental and physical powers to his 
profession, and consequently his knowledge of law was deep, 
and his success was the merited reward of his industry. His 
powers of perception were rapid and acute, his judgment sound 
and penetrating, and his reasoning powers were blended with a 
glowing imagination. 

To these intellectual traits Mr, Montgomery added the beau- 
ties of great moral worth. His integrity was superior to every 
influence, and his devotion to duty beyond the reach of all 
temptation. While his professional ethics were stern and dig- 
nified, his manners were softened by a complaisancy and polish 
that betrayed the well-bred gentleman, and kind and amiable 
man. 

In 1831 he was appointed to a seat upon the supreme bench 
of the State, but was superseded in 1832 by the provisions of 
the new Constitution, which introduced an elective judiciary. 
Judge Montgomery was an able jurist as well as an emin'ent 
advocate, and had he been retained iTpon the bench his career 
would doubtless have been as brilliant and exemplary as his 
success at the bar. 

On retiring from the bench Judge Montgomery resumed his 
practice of law in Natchez, in connection with his former part- 
ner, the distinguished Samuel S. Boyd, and the firm was amung 
the most celebrated in the State. He continued his practice to 
a great age, and died a few years since at the home of a rela- 
tive ill Warren County. 



CHAPTER IV. 



THE BAR -EMINENT LAWYERS— 1817-1832. 

ROBKRT J. WALKER WILLIAM B. GRIFFITH AVILLIAM VANNERSON— 

SPENCE M. GRAYSON ALEXANDER G. m'nUTT WALTER LEAKE 

EDWARD C. WILKINSON EUGENE MAGEE BUCKNER C. HARRIS 

JOHN T. m'mURRAN SAMUEL S. BOYD SAMUEL P. MARSH JOHN 

HENDERSON RICHARD H. WEBBER. 

In treating of the characters of the distinguished gentlemen of 
the Mississippi bar whose eminence was based upon true merit 
nngarnished by the gloss of official significance, the author takes 
no shame to himself from the inadequacy of his ability to cope 
with the noble lessons and sublimity of his' theme. To depict, 
in the style of aptitude and the language of felicity, those tran- 
scendent qualities and traits of character which wrested the 
noblest achievements, from the frowns of fate ; the genius that 
hurled the gauntlet of triumph into the face of every vicissi- 
tude of fortune, and wrenched the meed of fame from the cruel 
clutches of adversity, would surely daunt the efforts of any pen 
undipped in the unction of eloquence and unhallowed by the 
benison of inspiration. 

But whatever may be his shortcomings, he yet cherishes the 
hope that, if he cannot scale the height of his subject, he can 
at least direct the eyes of admiration and the efforts of ambition 
to the dazzling gems that cluster on its brow. 



EGBERT J. WALKER. 

The subject of tliis sketch jjossessed yar excellence one of the 
brightest intellects that adorn the history of the bar of Missis- 
sippi, and one that would have been an ornament to any bar, in 



no BENCH AND BAR OF MISSISSIPPI. 

any country, and in any age. Robert J. Walker was born in 
Kortlmmberland County, Pennsylvania, in July, 1801, emi- 
grated to Mississippi in 1826, and joined his brother, who had 
preceded him, in the practice of law in the city of Natchez. 
^ Mr. Walker's education was thorough and comprehensive. He 
was well versed in most of the schools of science, and prior to 
his study of law had graduated at the celebrated medical school 
' in Philadelphia. He was a fine linguist, thoroughly familiar 
with classical history, and had acquired no little proficiency in 
tlie polite literature of the French language. 

He soon achieved a high eminence at the bar of Mississippi, 
which he maintained with increasing lustre while he remained 
in the State. He was assiduous in the study of his profession, 
and became learned in all the branches of both the common and 
civil law : a knowledge of the latter being necessitated by the 
conflict of tenures which so much perplexed our early courts. 

In 1828 he was appointed to report the decisions of the Su- 
preme Court. This task he performed with fidelity and ability, 
and in 1832 presented the 1st Mississippi RejDorts, which em- 
bodied the decisions of the court from its establishment, in 1818, 
to that time. In this work he never failed to assail whatever 
he conceived to be an error of an important nature, and his re- 
ports are interspersed with many learned notes of this character. 

In 1836 he was elected to succeed Mr. Poindexter in the 
United States Senate, for a full term from the 4th of March, 
1835, and in 1841 was re-elected for a full term, from the 1th 
of March of that year. During his career in the Senate he was 
characterized by the same fidelity, intellectual culture, and 
eloquence which had rendered him so eminent at the bar, and 
during that time became particularly distinguished by his argu- 
ments on the " Mississippi slayery question." He was a warm 
and strenuous advocate of the independence of Texas ; and 
even after the fall of the Alamo and the butchery at Goliad, 
and when the Mexicans were apparently waging a war of 
extermination to all parts of that country, he did not for a mo- 
ment despond or doubt the final result ; and as early as the 22d 
of April, 1835, he called the attention of the Senate to the 
struggle, and suggested that whatever surplus funds wei'c in the 



ROBEET J. WALKER. Ill 

treasury should be reserved for the purpose of acquiring Texas 
from whatever might remain of tlie government de facto of that 
country, and dechired that the people of the Mississippi Valley 
would never permit Texas to he again subjected to the domin- 
ion of Mexico. 

In 1845 Mr. Walker was appointed Secretary of the United 
States Treasury by President Polk, from which lie retired in 
1849. Re was the author and the most able and efficient advo- 
ate of the revenue tariff of 1816. 

In 1857 he was appointed Governor of Kansas Territory by 
President Buchanan ; but, having espoused the anti-slavery 
party, he resigned in 1858, in consequence of the adoption of 
the Lecompton Constitution, and its approval by the adminis- 
tration. 

In 1861 Mr. Walker declared liimseK in favor of the preser- 
vation of the Union, and during the war resided in Europe as 
the financial agent of the Federal Government, whither he was 
sent chiefly to defeat the attempt of the Confederates to nego- 
tiate a foreign loan. This interception he effectuated by repre- 
senting the Confederate President as being a citizen of Missis- 
sippi, and as having been a leader in its repudiation of the 
Union Bank boiuls ; and as these bonds were held by European 
capitalists, they w^ere not slow to be instilled with the fear that 
a like result would attend any loan made to the Confederacy. 
This rejjresentation, while it was without foundation in truth, 
by thwarting the efforts of the Southern people to obtain money 
abroad, was no less destructive to their cause than the fatal re- 
coil at Gettysburg. Indeed, it was the poisoned arrow from 
whose wound the Confederacy never recovered, and by which it 
was, in the beginning, shorn of half its strength. 

Mr. Walker w^as a lawyer of searching industry, and his suc- 
cess at the bar was due in a great measure to a careful and ac- 
curate preparation of his briefs. He left no leaf unturned that 
would enable him to sound his cases, and to anticipate and 
thwart his adversary, or strengthen the merits of his own side 
of the question ; consequently he was never surprised or taken 
at a disadvantage. He was alert, discerning, and acute. His 
powers of perception could not easily be evaded, and his mem- 



112 BEXCH AND BAR OF MISSISSIPPI. 

ory possessed a clearness and tenacity, whicli enabled him at 
all times to convoke the results of his extended culture. He 
was a fascinating and edifying speaker, clear and precise in his 
arguments, and strictly scholastic in his choice of language and 
mode of expression. He possessed in a high degree the vox 
argentea so much commended by Cicero. 

He was kind and benevolent in his disposition, gentle and 
affable in his manners, generous and magnanimous in his pro- 
fessional deportment, benign and playful in his features, chari- 
table and confiding in his nature, and gained the respect and 
admiration of all who came within the reach of his influence. 
He was of that type of character which never fails to win its 
way to an exalted estimate among men. He died in the city of 
Washington in November, 1809. 



WILLIAM P). GRIFFITH. 

Wilham B. Griffith was a native of the State of Maryland. 
He was of a wealthy family, and possessed the advantages of 
early culture and a finished education. He had also studied law, 
and acquired a knowledge of the elements of that science prior 
to his removal to Mississippi. He located at Natchez about the 
year 181^ and began his professional career at that Temple Bar 
of the West, where he soon attained distinction ; and having 
formed a co-partnership with John A. Quitman, the firm be- 
came one of the most celebrated in the State. 

Mr. Griffith was gifted with intellectual faculties of a high 
order, which, with his habits of apphcation and his professional 
devotion, enabled him to master the law in all its branches, and 
he became familiar with all its abstruse features and subtle prin- 
ciples. His mental qualities were adorned with an acute pene- 
tration and a brilliant perception, and his judgment was char- 
acterized by an unerring discrimination. His logic was clear, 
close, and conclusive ; and his powers of argumentation were 
among the most brilliant of his ^professional qualifications. 

Plis high character as a lawyer was a combination of learning 
and the finest social accomplishments ; he was a man of fasci- 



WILLIAM B. GEIFFITII. 11;] 

nating and courtly manners, mild and forbearing in liis inter- 
course with the many uncouth characters witli whom the law- 
yers of that time were brought in contact. He was a graceful 
and attractive speaker, and is said to have been the most 
polished orator that had yet appeared in Mississippi ; and his 
eloquence was of that gentle and persuasive character which ap- 
peals more to reason than to passion : he never indulged in 
coarse invectives or vituperative assaults, but endeavored to 
reach the affections as well as the judgment of his audience, 
whether a jury or popular assembly, by amiability of nuinner 
and clearness of reason. 

Such were the characteristics of a man whom both nature and 
culture had marked for the fee of fame ; but in the meridian 
of life his brilliant career was suddenly severed by the Nemesis 
of all human greatness. Mr. Griffith fell a victim to that scourge 
which has of late years so often ravaged portions of the South, 
and died with yellow fever in the summer of 1829, leaving a 
young and accomplished wife, the daughter of Judge Edward 
Turner, afterwards Chief Justice of the Supreme Court. 

ORATION DELIVERED ON THE FOURTH OF JULY, 1819, BY 
WILLIAM B. GRIFFITH, ESQ. 

Fellow-citizens : It is with mingled sentiments of pride and 
of awe that I rise to address you. Of pride, when I consider 
myself as the organ of this enlightened assembly in the expres- 
sion of their joy and congratulation upon the return of the an- 
niversary of our national independence ; of awe, when I reflect 
upon the magnitude of the event and the sanctity of the occa- 
sion which we are assembled to commemorate. Be present, then, 
spirits of our departed heroes ! descend from your exalted sphere, 
to aid and inspire us this day, while we offer up, on the altar 
M-liich national gratitude has erected, the humble but sincere 
effusions of republican congratulation ! We approach you, not 
with the fragrant incense of the East or the pompous glories 
of the Hecatomb : we offer up what we conceive to have been 
the object of your labors upon earth ; perhaps we may say, 
M'ithout the imputation of impuety, an addition to the joys of 
heaven — the grateful homage of a nation of freemen. To you, 



114 BENCH AND BAK OF MISSISSIPPI. 

surviving brethren of the Eevoliition (if any such remain in this 
assembly), this day must recall recollections which of themselves 
will form your sweetest, best reward. 

On this day, forty-three years since, our fathers framed and 
pronounced the Declaration of Independence which you liave 
just heard read. Eising in their might, and relying upon the 
justice of their cause, they ventured, young and inexperienced, 
to place themselves in hostile array against the armies and fleets 
of Great Britain. Encompassed with danger, surrounded by 
open enemies, and friends more dangerous still, because they 
were vacillating ; unprepared with means, unskilled in the arts 
of war, behold this infant nation rearing the standard of war, 
and bidding defiance to the veteran legions of the foe. Behold 
the patriot soldiers of the Kevolution suffering under the pangs 
of hunger, or exhausted with the fatigues of the camp ; at one 
time compelled to disperse to obtain a scanty subsistence, at an- 
other yielding to superior force, and reduced to the sad necessity 
of turning their backs upon the foe. Who does not quake with 
fear, or tremble with indignation, when he remembers the pri- 
vations, the distresses, and despair to which our armies were re- 
duced ? To what cause can we attribute that persevering cour- 
age, that magnanimous fortitude, which enabled them not only 
to bear up against, but to rush forward and turn the current of 
fortune ; to hurl back upon the enemies of freedom the weap- 
ons intended for their own destruction ? It. was the Genius of 
Liberty. Rejecting the worn-out doctrines of passive obedience 
aud the divine rights of kings, abhorring the dictates of im- 
perial pride and despotism, the same spirit which impelled the 
victim of fanatic zeal and bigoted priestcraft to quit the shores 
of old England and plant a colony in a new world, to brave the 
dread inhabitants of the forest, and their still more formidable 
enemies the savages — that spirit now animated our fathers ; 
that spirit gave wisdom to their plans and energy to their 
•actions. 

Yes, sacred Genius of Liberty ! without thee, Washington had 
been but the subaltern of a king instead of the father of his 
country ; without thee, Franklin had remained the humble 
printer of a provincial district, instead of the representative of 



WILLIAM B. GEIFFITH. lU 

a free and united people. Without tliee, tlie glorious achieve- 
ments which have immortalized the heroes of Breed's Hill and 
Saratoga, of Lexington, Monmouth, and Trenton, had never 
been heai-d of in history. The boundless and fertile regions 
which are now inhabited by millions of freemen in the enjoy- 
ment of rational liberty, had still been the haunts of the howl- 
ing wolf or the roaming savage.. But, happily for us, fellow- 
citizens, the oppressions of the mother country soon reached a 
point beyond which they could not be extended. They blew 
into a flame the spark which might perhaps have been easily 
smothered by prudence and forbearance. I will not attempt to 
point out the causes, to mark the progress and dis]3lay the re- 
sult of our revolutionary contest. The recital of these events, 
in which we are all so deeply interested, would be unnecessary, 
because I am persuaded they are deeply engraven on your 
hearts. Let me rather call your attention for a moment to the 
period which succeeded the establishment of our independence. 
After having successfully asserted their claims to liberty and 
an independent government, and extorted from our enemy a re- 
luctant recognition to that eifect, a task remained of still greater 
magnitude and ■ difficulty. So long as the common danger ex- 
isted, the old Articles of Confederation were found sufficient to 
unite our citizens in the general defence ; but no sooner was 
this bond relaxed than a crisis presented itself which threatened 
at once to mar the blessings so dearly purchased by the best 
blood of our country. Private interests, and passions which had 
long lain dormant, now reared their heads. State prejudices 
and local jealousies threatened to usurp the dominion of public 
spirit and disinterested patriotism. Ambitious and unprincipled 
demagogues endeavored to inflame the passions of the people, 
and thereby create confusion. At this moment of dismay, when 
nothing but firmness and decision united to consummate wis- 
dom could have saved the Confederation from ruin, the sages 
of the Revolution advanced to uphold the fabric which they had 
erected. They had fought the battles of their country ; they 
had expended their treasures and their blood in defence of her 
rights : they now stepped forward to secure in the cabinet what 
their arms had acquired in the field. They formed the Consti- 



116 BENCH AND BAE OF MISSISSIPPI. 

tiition under wbicli we are at present governed, and present- 
ed it for the approbation of the States. Here, fellow-citizens, 
was exhibited to the world a spectacle of the utmost grandeur 
and sublimity : a nation of freemen canvassing with delib- 
eration, amending and finally adopting the charter of their 
rjo-hts— a form of government certainly the best calculated of 
any which the world has yet seen, to secure every natural right 
necessary to our happiness. As it was formed without violence 
or bloodshed, so it went into operation without difficulty or re- 
sistance. 

If we were previously indebted to those who obtained, at the 
point of the bayonet, the recognition of our independence, how 
much was the obligation enhanced when they placed it upon so 
firm and durable a foundation ! Other nations have been 
goaded on by the oppressions of a despot to snap their chains 
asunder and assert the unalienable rights of man ; other na- 
tions have had it in their power to frame for themselves govern- 
ments calculated for their happiness ; but in vain do we search 
the pages of history for the example of a revolution similar to 
our own. In some instances one tyrant has been put down 
only to give room for another more cruel than the first. In 
others a many -headed monster, under the form of an aristoc- 
racy, has sprung from the ashes of liberty ; while in some cases 
the assertion of freedom has given rise to such abominable 
cruelty, such unheard-of atrocities, that human nature revolts 
at the recital. Of this latter description was the revolution in 
France. Commenced under the auspices of those who admired 
and envied our own, how differently, alas, was it conducted I 
how differently terminated ! Like the wars which have been 
commenced under the mask of religion, the atrocities of those 
monsters who disgraced the cause of freedom in France were 
commirted under the banners of liberty. When the sacred cross 
of the Eedeemer was carried as the ensign of the crusader, and 
used as the signal for nmrder, rapine, and conflagration ; when 
the meek religion of Jesus was employed to sanction bloodshed 
and palliate crime-;, its deluded followers believed themselves 
working out a blessed immortality, and advancing the glory of 
their spiritual as well as temporal masters. Thus Barras, Collot, 



WILLIAM B. GRIFFITH. 117 

D'Herbois, and Robespierre, with the otlier monsters of tlie 
Jacobin Club, erected statues to liberty and altars to the genius 
of their country. But while the people were deluded with 
these outward symbols, they exercised a cruelty the more de- 
testable because it was unnecessary, a tyranny the more gall- 
ing because it went under the name of liberty. The enthu- 
siasm of otlier nations who sympathi?;ed with the real patriots in 
I'rance was gradually converted into disgust and horror, when 
such was found to be the course of the revolution. It will al- 
ways afford matter of deep regret that such should have been 
the event of a struggle capable, in itself, of the most beneficial 
results, not only to France herself, but to the rest of Europe. 

But to return from this digression. Immediately after the 
organization of the Federal Government our prosperity com- 
menced. Under the auspices of him who led our armies to 
battle during the war, the arts of peace were no less successfully 
cultivated. Formed alike for the din of arms and the retirement 
of peaceful life, equally great in the field and in the cabinet, he 
offered to the world the rare and imposing spectacle of the 
Chief Magistrate of four millions of freemen seated, like a 
father in the midst of his children, administering a goverjiment 
of law and of liberty. Without the external insignia of roy- 
alty, unadorned with the gems and the jjurple of a monarch, 
deriving no extrinsic aid from the splendid tinsel of a court, he 
shone with a dignity unrivalled because it was native ; he ex- 
cited a respect which was unequalled because it was the invol- 
untary homage of the heart, at all times due to exalted virtue. 
Superior to passion and inaccessible to temptation, he was not 
devoid of ambition ; but it was of that noble order which 
aimed rather at the hapi^iness of his fallow-citizens than his own 
aggrandizement. Called to the highest office of our country by 
the unanimous suffrages of his constituents, he took the presi- 
dential chair with a modesty surpassed only by an ardent love 
for his country ; and when retiring to the walks of private life, 
he carried with him the warm affection and enthusiastic admi- 
ration of every honest man and every good citizen. Plis fame 
was founded upon virtuous actions and exalted patriotism. 
Great and good man I the united voice of your own and of 



118 BEKCH AND BAR OF MISSISSIPPI. 

other nations lias pronounced your eulogy, and borne testimony 
to the justice of the praises which we delight to bestow upon 
your memory. After ages will continue to view with delight 
the wreath which a grateful country has woven for your brow. 
Heroes and statesmen will look to your character as their bright 
exemplar, and patriots of every succeeding age will pronounce 
with reverence and delight the name of the immortal Washing- 
ton. 

Under his administration, fellow-citizens, the resources of 
our country developed themselves. Public credit, impaired 
during the Revolution, was restored. Commerce and manufac- 
tures advanced with rapid strides, while agriculture rewarded 
with abundance the labors of the cultivator. The calm which 
had thus fortnnately succeeded the storm of the Revolution gave 
leisure for the active employment of all the arts of peace. Lit- 
erature and the sciences now raised their fallen crests, and ven- 
tured to come forth from the covert places to which they had fled 
when the blast of the war-trumpet was heard. The war-worn 
patriot resigned the armor which he had buckled on at the call 
of his country, and exchanged the duties of the soldier for 
those of the citizen. Hitherto known only as provinces of the 
British Empire, the United States now took their stand as one 
among the nations of the earth. From the close of the revolu- 
tionary contest until the commencement of our difficulties with 
the two great belligerents of Europe, our situation was truly 
enviable. While almost all the nations of the world were en- 
jraffed more or less in destructive and ruinous wars, we alone 

DO ' 

were at peace. Far as the eye could reach, or even the imagi- 
nation penetrate, we surveyed our extensive, our luxuriant pos- 
sessions. From the cold and rocky regions of the North, where 
the hardy mountaineer collects his scanty harvest, to the mild 
and genial districts of the South, where the earth affords to the 
cultivator a rich reward for his toils, the delighted eye of the 
philanthropist surveyed the joyful scene of a free, a happy, and 
a contented people. Nursed under a government propitious to 
liberty, and favorable to the development of our flnest faculties, 
every spring of the human mind was at work, and every affec- 
tion of the heart had room to expand. Our infant manufac- 



WILLIAM B. GRIFFITH. 11!) 

tures bade fair to rival the boasted fabrics of Great Britain and 
France ; our commerce, like tbe fleecy clouds which adorn the 
summer day, whitened every sea, and bore to the most distant 
climes the j^roduee of our soil and the fruits of our industry. 
But alas ! fellow-citizens, this state of prosperity was destined 
too soon tp be altered. Other powers could not conduct their 
bloody contests without infringing the rights and injuring the 
property of neutrals. Under pretence of searching for the prop- 
erty of their enemies, they assumed the right of visiting all 
neutrals. From this first step, the fair exercise of which is no 
doubt sanctioned by the laws of nations, the transition to the 
impressment of American seamen and the confiscation of hona 
fide American property was as easy as it was unprincipled. 
The restrictive system entered upon with a view to the cure of 
these evils, though productive of some imj)ortant benefits, was 
not attended with the expected success. Instead of effecting the 
desired object of compelling the belligerents to relax their in- 
iquitous system of measures, it served only to paralyze more 
completely our commerce and lessen our resources. The great 
staples of the Southern and Western States were confined like a 
dead weight at home, unproductive and useless. The mer- 
chants and traders of the Eastern and Middle States united with 
the planters of the South in calling upon the Government for 
something more decisive. Such a state of things could not 
long exist. National honor, as well as national prosperity, was at 
stake, and nothing presented itself but the alternative of an hon- 
orable war or a ruinous and disgraceful submission to outrage 
and insult. War was accordingly declared, on the 19th day of 
June, 1812. 

With the more remarkable events of this contest you are too 
familiar to render it necessary or even excusable in me to dwell 
upon them. But I cannot forbear detaining you for a moment 
upon one in which I am sure you feel particularly interested — 
one in which every American must glory. At the perioJ when 
it occurred our Government had been restricted in its means and 
crippled in its resources by the extremes of party spirit. Fac- 
tion, with her hydra head, distorted the views, misrepresented 
the motives, and ridiculed the measures of the Government. 



120 BENCH AND BAR OF MISSISSIPPI. 

The army was discouraged, and the people despond insi;. Elated 
by these circumstances, and calculating upon our distresses, our 
enemies even went so far as to attempt a dissolution of the 
Union. Buoyed up by the success of the Allies in completing 
the downfall of Bonaparte, Great Britain directed all her ener- 
gies against this country, and determined to attack us at all 
points. While her emissaries were at work in New England en- 
deavoring to foment the discord and blow into a flame the dis- 
sension of parties, an expedition was fitted out in the West In- 
dies which was intended to destroy the resources of the whole 
Western country. You already perceive, fellow-citizens, that I 
allude to the attack upon New Orleans. Next to the event 
which we this day celebrate, that which I now allude to should 
be dear to the recollection of our country. All eyes, all 
hearts were directed towards the gallant army under General 
Jackson. Drawn up in front of the most formidable armament 
wjiich had ever landed in hostile array upon our shores, a raw 
band of undisciplined militia were about to engage in mortal 
combat the regularly disciplined and veteran soldiers of Great 
Britain. 

It was here, fellow-citizens, that our brave general displayed 
those qualities which have raised him so high in the estimation 
of his countrymen. He observed w^ith coolness the prepara- 
tions for the attack, and prepared with skill the necessary means 
of defence. By the wisdom of his arrangements, the quickness 
of his movements, and the undaunted energy of his mind, he 
encouraged and fixed the few who wavered and feared, he com- 
pelled the ill-disposed to assume, at least, an apparent zeal for 
our cause, and he raised to enthusiasm the ardor of those gal- 
lant men who had joined him from the neighboring States of 
Kentucky, Tennessee, and Mississippi. But to you, fellow-cit- 
izens, why this detail ? To you who were his companions in 
arms on the ever- memorable 8th of January, 1815 ? To you 
who saw the British line one moment advancing gallantly with 
fixed bayonets to the trendies, and Ihe next prostrate in the 
dust ? Like the blast of the hurricane when it passes over the 
forest, mighty and resistless in its course, it has gone by ; but, 
alas, how changed the scene I The tall oak with its stately 



WILLIAM B. GEIFFITII. 121 

branches lias kissed the earth, and tlie loftiest trees of the forest 
lie riven and disfigured. Thus the proud army of our invaders 
was reduced in a few minutes to the miserable " remnant of a 
thing that was." Such, fellow-citizens, was the result of this 
formidable expedition, and it is scarcely necessary to add that 
this battle not only preserved from the most serious disasters 
the whole country on the banks of the Mississippi, but diffused 
over the close of the war a luminous and brilliant streak of 
glory. 

Reposing, as we now do, in the bosom of our families, in the 
enjoyment of peace and prosperity at home, and honor and re- 
spect abroad, it may be asked, why we recur to these scenes of 
war and bloodshed ? Why conduct us to the camp and blood- 
stained field ? It is, fellow-citizens, for the purpose of keeping 
alive those sentiments of patriotism which animated our citizens 
in the day of battle. It is with a view to stimulate to fresh 
deeds of valor the rising generation of our country, should an 
invading foe again pollute our shores. It is for the satisfaction 
of paying the delightful debt of gratitude — the gratitude which 
a nation owes to her worthy sons. With the feelings which ani- 
mate the breast of a uiother when she clasps to her arms her 
protecting offspring who have rescued her from the grave — with 
such feelings as these does our country greet the recollection of 
the heroes wdio have preserved from disgrace the national es- 
cutcheon. The Genius of Columbia looks down from above and 
approves the annual tribute of respect and gratitude which we 
are this day paying to the patriots of the Revolution and their 
brave descendants. She points to the tablet of Fame, on which 
their names are inscribed ; she invokes the youth of our country 
to bear their virtues in mind, and when occasion offers to imitate 
their bright example. Surely, if there is any reward for patriot- 
ism, any stimulus to a noble ambition, it is the hope of living 
forever in the hearts of our countrymen. 

In the ancient times of the Athenian and Spartan republics, 
it was such rewards as these which formed the hei'oes of Mara- 
thon and Thermopylae. The 8]30t on which their fellow-citizens 
had conquered and died was consecrated with tears, and each 
returning anniversary of the day was celebrated by a solenm 



122 BENCH AND BAE OF MISSISSIPPI. 

festival. The young' men and maidens, dressed in white and 
moving in solemn procession, preceded by the priests bearing 
the insignia of their religion, strewed their graves with flowers, 
and crowned with cypress and laurel wreaths the simple column 
on which their names and virtuous actions were recorded. Per- 
ha])s at such a festival as this Epaminondas iirst felt himself 
inspired with devotion to his country ; here, perlia23s, his infant 
mind kindled at the recital of martial deeds, and blazed with 
the ardor of patriotism against the enemies of his country. 
Here the gallant Spartan imbibed those principles which have 
immortalized the straits of Thermopylae. Here Demosthenes 
may have made the first essay of that eloquence which united 
(ireece in one expiring effort for the preservation of liberty. 
Like them, fellow-citizens, let us leave to the monarchs of Eu- 
rope to remunerate merit with garters, and encircle with stars 
the breasts of their great and brave men. Be it ours to reward 
our heroes with gratitude and love. Let us erect to them mon- 
uments more durable than brass, more lasting than the pyramids 
of Egypt. So long as liberty shall exist and virtue be rever- 
enced, while patriotism shall be honored and bravery admired, 
will we preserve in our hearts the recollection of their merit and 
the remembrance of our obligations. 

After having thus briefly glanced at some of the more im- 
portant events of our own history, permit me, fellow-citizens, 
to congratulate you on the j) resent happ}^ state of our own coun- 
try, and of the world. The great political volcanoes whose re- 
peated eruptions have desolated Europe during the greater part 
of the last century have at last abated their fury ; a holy calm 
has succeeded the storm of war, and the wretched inhabitants 
begin to revive. The earth has resumed its verdure, and we 
fondly anticipate a protracted season of peace and prosperity. 
It affords also matter of pride and pleasure to observe the con- 
ciliating disposition and friendly attitude manifested towards us 
by foreign nations. Even our old enemy, Great Britain, seems 
to be at last convinced that it is sound policy to remain at peace 
with us. Whoever, indeed, considers the immense amount of 
her manufactures annually eonsuiced in this country, and ob- 
serves how heavily the balance of tratle is against us in our com- 



WILLIAM B. GKIFFITH. 123 

mercial concerns with lier, will wonder what infatuation could 
ever have blinded her ]>oHticians upon this subject. It became 
evident, during our last contest with her, that every year added 
to the excellence and increased the quantity of our domestic 
manufactures. Two years' longer duration of the war would 
have placed them upon so firm a footing as to have defied com- 
petition. "When we reflect what a deadly blow this circum- 
stance must have inflicted on the manufacturing interest of 
Great Britain, we cannot but condemn the rash and short-siglited 
policy which could thus jeopardize the principal pillar of her 
greatness. 

"VVe turn with pleasure from the policy and conduct pursued 
by European powers to the equitable and magnanimous meas- 
ures of our Government in her late transactions with Spain. 
After a protracted negotiation, spun out by all the arts of di- 
plomacy and chicane which could be summoned in aid of the 
" adored Ferdinand'' by his \vorthy rejiresentative, Don Onis, 
our affairs seemed at last to be drawing to a crisis. The trans- 
fer of the Floridas, or the liquidation of the demands of our 
merchants for the unjust depredations committed on our com- 
merce, appeared to be the only methods of preventing war. 
At this interesting moment, in the prosecution of the Seminole 
"War our troops occupied Pensacola, the key of the Floridas. and 
we may say, indeed, of the Gulf of Mexico. By retaining posses- 
sion of this important post, our Government would have secured 
the most obvious advantages. In case of a rupture with Spain 
we obtained the " vantage ground," from whence every blow 
would fall with double force. The measure, though not strictly 
just, would have been easily excused by the example of almost 
every civilized nation. Russia, Austria, and Prussia could not 
exclaim against it after the partition of Poland ; France could 
not object, when she remembered the ari'ondist^ement of her 
own empire ; England could not upbraid us while the battle of 
Copenhagen was staring her in the face. The world would have 
looked on and palliated if not praised the measure on the score 
of political expediency. But mark the contrast : we had pene- 
trated into the Spanish dominions solely with a view to root 
out our savage enemies ; this object once accomplished, our Gov- 



124 BENCH AND BAR OF MISSISSIPPI. 

ernment declared their readiness to deliver np the post to any 
force competent to maintain the respect due to the neutrality 
of the Spanish Government. The subsequent transfer of the 
Floridas has precluded the necessity of doing so ; leaving, how- 
ever, no doubt, from the declarations of our Government, that 
our faith and honor would, in any event, have been most scru- 
pulously redeemed. 

We appeal confidently to the history of nations, and chal- 
lenge the production of an instance of conduct more truly mag- 
nanimous than that of the President in this transaction. It has 
already met with the unqualified approbation of the most enlight- 
ened citizens in the community, and called forth from foreign 
nations an expression of praise, the more gratifying because we 
may suppose it to have been reluctantly given. While other 
powers are endeavoring to extend their domains by the exertion 
of authority and physical force, regardless of the rectitude or 
depravity of the measure, it must be to us a subject of pride to 
observe the magnanimity of our own Government under similar 
circumstances. Rejecting the low arts of diplomacy, and the 
more dangerous and formidable application of unjust warfare, 
it seems to demonstrate to the world that in the intercourse of 
nations as well as of individuals, " Honesty is the best policy." 

Such has hitherto been, and such we trust will ever be, the 
characteristic feature in the administration of the United 
States. The virtue and the morality of a people depend much 
on the example of the Government, and the corruption of the 
latter is almost always the sure forerunner of the former's 
degradation. 

From the contemplation of our own happy condition at this 
time you will turn, no doubt with pleasure, to sympathize with 
our fellow-republicans in the South who are laboring to throw 
off the trammels of a despotic and imbecile monarch. The 
time 16 fast approaching when the fertile and extensive regions 
of South America will l)e inhabited by a race of people who 
are destined to enjoy the bleasings of liberty and independence. 
The republican banners now float in triuinph over the liberated 
provinces of Chili and Peru, while the victorious San Martin is 
driving the remnant of the royal armies fi'om their last fortresses. 



WILLIAM B. GEIFFITH. 125 

Already has the Genius of Liberty risen in its splendor upon this 
luxuriant and fertile portion of the globe. Already have the 
clouds been dispersed which superstition and the policy of a 
weak monarch had accumulated round the minds of the people. 
Religion, before enthralled in the mystic mazes of priestcraft, 
begins to come forth in her lovely and native colors— not that 
religion whicli sits in terror upon the dark and gloomy throne 
of the Inquisition, presiding in blood over the groaning and tor- 
tured victim of the rack ; not that religion which lights tlio 
sacrilegious fires of an cmto dafe\ and wafts to the throne of 
the Eternal as an acceptable sacrifice the parting spirit of the 
wretched heretic, whose heinous sin consists in a conscientious 
difference of opinion ; no, it is the mild religion of Jesus, divine 
in its origin as it is glorious in its progress, gathering under its 
branches the scattered nations of the earth, not by the edge of 
the sword, but by the mild efforts of persuasion and godlike 

charity. 

And can we, fellow-citizens, while this glorious revolution is 
progressing, look coldly on and remain idle spectators of the 
scene ? Can the descendants of the heroes of '76— the immor- 
tal spirits who threw off the shackles of Great Britain, and 
made a successful appeal to the God of Armies ; who called 
aloud upon the nations of the earth to acknowledge and secure 
their independence-can they be deaf to the appeals of millions 
of fellow-Americans who are striving in the same noble career ? 
No ! Let us rather offer to the world the glorious spectacle of a 
free and enlightened republic rearing her star-spangled banner 
to extend the influence of freedom, to spread the blessings of 
liberty and independence throughout the fairest portion of the 
globe, to dispel the mists which superstition and ignorance have 
left over the face of nature, and like the glorious orb of day to 
scatter light and genial heat through the dark and gloomy mazes 
of Spanish policy. How glorious in after ages, when the plains 
of the South shall teem with the children of a government mod- 
elled upon our own, to be hailed as the parent republic, to 
whom, under Providence, they will be indebted for their dear- 
est privileges ! The imagination cannot conceive a situation 
more desirlble, an undertaking more worthy of a free and en- 



12(5 BENCH AND BAK OF MISSISSIPPI. 

lightened nation. You will i3ardon nie, fellow-citizens, if upon 
a theme like this I sliould appear to have followed the sugges- 
tions of the heart rather than the maxims of a cold policy. 
Some scope must, however, be allowed for generous and disin- 
terested actions, as well in the intercourse of nations as between 
man and man. But upon this subject we have every reason to 
rely upon the justice and generosity of our present Chief Magis- 
trate, and we doubt not that erelong the independence of one 
or more of the patriot powers will be recognized. 

Ijut I fear I have exhausted your patience, and I will de- 
tain you but a moment longer. It is with a view to add my 
sincere and ardent wish that the return of this day, through ages 
yet to come, may find our country in the enjoyment of the 
blessings of liberty and independence ; her shores unpolluted 
with the footsteps of an invading foe ; her inhabitants uncor- 
rupted by luxury, undivided by faction ; her dominions the 
habitations of plenty and the residence of peace. While the 
nations of Europe are contending for an extension of their 
boundaries, and bathing their plains in blood to satiate the rapa- 
city and gratify the ambition of their monarchs, grant, O God ! 
that our country may ever be the resting-place for the weary 
dove of the Angel of Peace ! May the United States be the po- 
litical Mount of Ararat, where the tempest-beaten ark of liberty 
shall touch and find a resting-place— an asylum for the wretched 
victim of tyranny, a safe resort for the martyrs of liberty 
throughout the globe. To make it such, fellow-citizens, depends 
much upon ourselves. While we preserve pure and uncontami- 
nated the principles which warmed the breasts of the heroes of 
'7(i, while we admire their virtues and imitate their example, 
the return of this day will ever find us, as we are now, a free 
and a happy people. 

WILLIAM VANNERSON. 

The subject of this sketch was aiiative of Virginia ; was born 
and reared in the county of Amherst, but resided some time 
m Lynchburg, where he married Mrs. Allen, a niece of Hon 
William II. Crawford, of Georgia. He removed to Mississippi 



WILLIAM VANNERSOK. 127 

about the year 1825, and settled as a lawyer in ]^atcliez, where 
he soon acquired great personal and professional popularity, and 
obtained a large local and circuit practice. lie was several times 
a representative of his county in the Legislature, and in 1837 
was Speaker of the House, He was also for several years on 
the circuit bench, and characterized his judicial career by a 
strictly ci^nscientious adherence to law and justice. He after- 
wards located at Monticello, in Lawrence County, where he re- 
sided and practised to an extreme old age. 

Mr. Yannerson was by no means a man of profound learning, 
either in law or any branch of erudition ; his early education 
was deficient, and he never acquired the habits of close and as- 
siduous application. lie was fond of society, and enjoyed its 
animated pleasantries too keenly to relish the anchoritic seclusion 
of profound legal study. Yet he was one of the most success- 
ful criminal huvyers at the Mississippi bar, and his practice on 
that side of the docket was large and lucrative. To this branch 
of the law his professional reading seems to have been chiefly 
directed, as it was jnore congenial to his taste and peculiar tal- 
ents, and gave scope and occasion for the exercise of his emo- 
tional energy and the sympathetic elements of his nature. 

He was remarkably expert in all the features of criminal prac- 
tice, in the management of his cases, and in the examination of 
witnesses ; and was astute in the methods of obtaining contin- 
uances, turns, and concessions favorable to his clients. But his 
greatest strength lay in his art of persuasion, and his remarkable 
efficiency before the jury. His appeals to the bar of humanity 
were pathetic and winning. lie possessed a depth of convic- 
tion and a capacity to feel, which spread their contagion to the 
minds and feelings of his hearers, and often caused tears of sym- 
pathy to trickle down the cheeks of the most hard-visaged juror. 
His sensibilities acted in concert with his mind ; and while the 
one penetrated to the depths of reason, the other stirred the 
soul of compassion. 

As an orator Mr. Yannerson w^as fluent, logical, and, at times, 
eloquent. He had a flne command of language, an earnestness 
of manner, and a felicity of expression, which, united with a 
glowing imagination, a lively fancy, and a flne taste for imagery, 



128 BENCH AND BAR OF MISSISSIPPI. 

comiiiended his arguments to close attention and favorable con- 
sideration. His self-control and placid temperament enabled 
liim at all times to command the full exercise of his powers, 
and his humorous tact clothed every incident in the colors of 
advantage. 

He was not, however, altogether free from a vein of harmless 
egotism. Like Mr. Sergeant Cockle, who, in consequence of his 
great powers of persuasion and influence over the mind of 
juries, proudly received the appellation at the English bar of 
" the Almighty of the North," Mr. Yannerson wore with distin- 
guished approbation and complacency the soubriquet of ' ' the 
Napoleon of the bar." But the origin of these sounding epi 
tliets was somewhat different : that of Sergeant Cockle was 
fastened upon him by the following circumstance : A person 
who was a party to an action pending in one of the assize courts 
of the northern circuit of England, was in consultation with his 
counsel, and, notwithstanding their encouraging assurances and 
favorable views of his case, he listened with dolorous visage, and 
finally exclaimed, " 1 am much obliged to you, gentlemen ; I 
am much obliged to you ; but it won't do — it can't do — the 
Almighty is against me." " Are you mad, man !" exclaimed 
one of his counsel ; " what has the Almighty to do with your 
cause ?" "1 don't mean Almighty God, sir," replied the client, 
" I mean Sergeant Cockle — he's o' t'other side." But the au- 
thority by which Mr, Yannerson held his title must be inter- 
preted by the pride which he reposed in the claim. 

It is said that on one occasion he entered the court-room 
where a case was awaiting his participation, and handed the op- 
posite counsel a note stating that the "Napoleon of the bar" 
had arrived, but regretted to find that he was to meet a Wel- 
lington. To which the gentleman replied that there was no 
danger that a Blucher would come upon the field with his fierce 
Prussians and turn the scale of the conflict. 

Mr. Yannerson possessed great f)liysical vigor and animation 
of spirits. Full of life and vivacity, it was with difficulty that 
he could preserve at all times, while on the bench, the dignity 
of a judge, and often manifested a jDcnding conflict between the 
gravity of his position and a penchant to thrust good-natured 



WILLIAM YANNEKSON. 120 

ridicule at some luckless pleader or verdant witness. He was 
the soul of wit, and perhaps the most confirmed humorist that 
ever appeared at the Mississippi bar. But his ridicule and sar- 
casm, though pungent and scathing in the highest degree, were, 
nevertheless, always cast in the mould of good-nature. His 
fondness for jest was ever on the alert, and he never lost a 
suitable opportunity for its exercise. The following letter gives 
a spontaneous indication of his humor and amiability ; and by 
which it will be seen that the distinguished gentleman to whom 
it is addressed, and who kindly presented it to the writer, once 
contemplated an undertaking similar to that upon which the lat- 
ter is now engaged. 

" , 2d April, 1857. 

" Hon. J. F. H. Claibokne. 

" My r>EAK Sir : Your welcome favor of date 6th February 
last came to hand on the 10th of same month, and strange it is 
indeed, and contrary to my usual habits, that I have suffered it to 
remain so long without giving back an acknowledgment of its 
reception. This is partly owing to the fact that I have been 
much from home th5s spring, as our circuits commence earlier 
than formerly, under the late arrangements ; and partly because 
your jjroposition in some degree staggered my resolution, and 
put to task in some measure my notions of prudence. 

" I know, my dear sir, that you can do full justice in any 
biographical sketch you may undertake, or fully illustrate and 
beautify any incident of which you may be furnished the proper 
data ; but I have doubted the propriety of giving to the public 
much of the incidents of my humble career, fur the reason thiit 
there are so many persons still living who have felt my steel. 
The truth is, my victims don't die off fast enough for the growth 
of my fame in a particular line ; I am therefore at a loss to 
know how I may gratify your wish in regard to the matter. I 
can scarcely call to mind a single man whom I have wounded in 
some sortie or conflict of words, who is not still living : in- 
stance our old friend Gains — he has suffered dreadfully in many 
a Yannersonian campaign, and always bringing his disasteis 
upon himself. Judge Stone has suffered great havoc — all of 
the Natchez bar, present and past. John B. JS'evit, the Prince 
of Democracy ; many of the merchants still living at Natchez ; 
Lamkin, of Holmesville, can tell you of some of my merciless 
thumps on poor Stone. I have sometimes had the crowd of the 
court-room jumping at Stone's expense. 

" Beppo calls me the Nestor of the bar; if I am not mis- 
taken, perhaps it is the Clarion. My cognomen about here is 



130 BENCH AND BAR OF MISSISSIPPI. 

' the Napoleon of the bar. ' I like tliat better, if one can like any 

misnomer. 

" About two years ago, Livmgston, ot JNew lork, wrote to 
me for a full sketch of my biography, for his intended work on 
living lawyers of eminence. Judge Harris communicated to 
me, somewhat inter nos, that Cassidy, of Meadville, was at that 
time very anxious to become the biographer for the occasion ; 
but it was not undertaken by him. I did not yield to the sug- 
gestion, partly because I thought Livingston's book would 
prove to be a failure as to popularity, as it has turned out ; and 
partly because his charge for inserting the sketches was too 
hio-hly extravagant for my purse. The cause of the failure of 
tlie work was that so many of the small minnows of the deep 
law o-ot into it by paying ; that if a whale chanced to get in 
among them he showed to a disadvantage ; instead of magnify- 
ino- the minnows, so that they could appear of respectable dimen- 
^sions in such company, the work had the effect of reducing the 
whale to their own size. So, my dear sir, if my biography is 
ever written,' I trust that I shall not be placed alongside of 
^ucli company as Mr. Livingston proposed to pick out for me. 
" There is' a peculiarity in relation to myself that I pray you 
take the stating of as true — ^to wit : the almost total absen(;e of 
any recollection of the things I may say or have said ; hence it 
is apparent tliat none of my hits are ever given in anger, other- 
Avise I should remember them. There are exceptions to this 
characteristic trait, but they are few. I am often reminded of 
havin^ thrown a demolishing missile, and then remember it ; but 
to o-ive in detail anything of what I have said is almost impossi- 
ble. I remember well the jolly time in the city, which Beppo 
called from the grave of long years' slumber ; and so I can recall 
anything I may have said when reminded of it. 

" But there is yet hope for you : we have mutual acquaint- 
ances, any or all of whom can give you more of the incidents 
in my career than myself — Colonel O. J. E. Stuart, formerly 
of Meadville, now of Holmesville ; Hiram Cassidy, Esq., of 
Meadville ; Hon. W. P. Harris, of Jackson ; E. G. Peyton, 
Esq., Gallatin ; E. Safford, Esq., of Liberty, Amite County. 
These are all literary men capable of appreciating anything that 
is rich or spicy. I don't think Peyton will do much for the 
subject, however ; he has often been a victim himself, though 
he always enjoys a tilt I make at others. Safford and Stuart 
you will find interesting correspondents. Judge Posey, of 
Woodville, could no doubt help you out some if he would. 
Hurst also, of Liberty ; but he hates the toil of writing so much 
that he would most probably decline. Sam A. Mathews, of 
Holmesville, is a sheer good fellow, loves wit and possesses it ; 
he could give you a good page of me. I nuide a speech in 
Holmesville last month (March), in defending a lady for cow- 



WILLIAM YANNEESON^. 131 

hiding amercliant in liis own store for insulting language ; Sam 
Matliews said that speech and some of the incidents he Avas de- 
termined to publish. They said that when I was about to close 
my speech, some of the crowd in the court-room cried out, 
'Go on, go on ! ' a thing you know to be very unusual in a 
court-room. I have not seen any publication of the s]ieecli yet. 

" My dear Claiborne, this is a strange j^lace I am in ; the 
people here are all sedate, sorrowful, and gloomy ; they cannot 
appreciate anything. The crack of witticism in this town is 
never noticed ; it is like speaking in an unknown tongue ; it 
falls like coin dropped into the sea, and is never heard of any 
more. Prentiss himself would fail here in his best humor ; the 
people don't know it ; they can't take, as the saying is. Jer- 
sey iiurnes would fail too. I hardly ever get a chance here to 
practice any at my cheerful sport. I hate myself sometimes 
when I find I am getting to be so much of a matter-of-fact 
man. In this town ' genius sickens, and fancy dies ; ' but 1 
cannot leave it ; am comfortably situated "with a most happy lit- 
tle home, a bountiful supply of everything, and a most lovely 
residence. 

" I almost, nevertheless, envy yonr own sweetly secluded 
home, away out, as it is, from the noise of the heartless world, 
where everj'thing is enjoyed that can make life glorious, and 
where nothing but the ' echo ' of others' ills can reacli you. 
May it always be so. God bless you ; being so happy as you 
are, you ought to think of pi-olonging that happiness in another 
life, where no echo of distress can ever come. 

" Truly yours, Vannerson." 

But while Mr. Vannerson claimed to be in oratory "the 
Napoleon of the bar," he was certainly in his latter days its 
Nestor in respect to age. It is said that at the time of his 
death, in 1874, he claimed to be more than a hundred years old ; 
and at this remarkable age, the old hero went down upon that 
Waterloo field whose fiat no Naj^oleon could resist. 

He left no family, but left a name full worthy of a place 
where the whale cannot be reduced in inagnifying minnows. 



132 BEXCH AND BAK OF MISSISSIPPI. 

SPENCE M. GRAYSON. 

S pence Monroe Grayson was born in Prince William County, 
Vir-inia, in the year 1803. His early educational advantages 
well! l)nt ordinary, and on the death of his father the burden 
of his family devolved upon Spence, who was his oldest son. 
He continued to labor for its support until assisted by his 
uncle, Beverly R. Grayson, a planter residing near Natchez, 
Mississippi, who took the young man under his care and placed 
him at school at Jefferson College, in the village of Washing- 
ton, near Natchez ; and as soon as he was sufficiently advanced 
directed him to the stndy of law in the office of Thomas B. 
Reed, then a lawyer of large jDractice in Natchez. 

In 1825 or 1826 he received his Hcense, and entered upon the 
practice of his profession, in which he rose rapidly. In 1830 
he married Miss Sarah R. Chew, only daughter of William L. 
Chew, a wealthy planter of the vicinity, and in 1835 removed 
to Yazoo County, where he purchased a large plantation near 
Benton, then the county-seat, and in 1838 represented Yazoo 
County in the State Senate. 

Mr. Grayson attained great distinction in his profession, and 
stood in the front rank of the Natchez bar, at a time when it 
gHttered with the coruscations of the highest order of learning 
and genius. He was a lawyer of fine judgment and skill, de- 
voted to his profession, and assiduous in his application. He 
was consequently a successful lawyer, and engaged a large and 
lucrative practice. He was by no means gifted with the powers 
of oratory ; but he possessed that which, in a lawyer, is far 
better : he possessed depth of legal knowledge, strong logical 
powers, and was forcible, lucid, and convincing in argument. 

He was exceedingly kind and courteous in his manners, and 
few men cherished more than he the elegance and charm of so- 
cial life. P>ut while he was popular in society, naturally quick 
of perception, and penetrating in judgment, his professional 
eminence was due mainly to his perseverance and unwearied 
application to the details of his profession. He died in Yazoo 
in the summer of 1831). 



■ ALEXANDER G. McNUTT. 133 

ALEXANDER G. McNUTT. 

Alexander G. McNutt was born and reared in the State of 
Virginia, His early educational advantages were,in consequence 
of the poverty of his parents, very limited, and he was at an 
early age consigned to his own resources ; but buoyed by an am- 
bition to achieve an honorable place among men, and seeking a 
more propitious field for the strife, he emigrated, in 1822, to 
Mississippi and settled in Vicksburg, w^iere he began the prac- 
tice of law, and soon attained distinction at the bar. Poor, 
friendless, and destitute of all resources save those with which 
nature had endowed him — a sound head, an honest heart, and 
high resolves— he came to this hospitable State, and by his in- 
dustry, sterling honesty, ai\d the vigorous exertions of a strong 
and practical mind, rose, first to a high rank in his profes- 
sion, and then to the highest office in the gift of the people of 
his adopted State. He was for several years a member of the 
Legislature ; in 1837 he was Speaker of the Senate, and in 
1838 was chosen Governor of Mississippi, to which office he 
was re-elected. 

While in the Legislature, Mr. McNutt distinguished himself 
by his powerful and successful exertions to secure to the new 
counties formed out of the Chickasaw and Choctaw cessions 
the exercise of the right of representation, which, on account of 
the motley and incongruous elements of their constituencies, 
was for some time vehemently opposed by the older and more 
stably settled counties of the State. This action greatly en- 
deared him to the people of the new coimties, and in his can- 
vass for Governor they supported him with unanimity and 
zeal ; but by this course he created enemies in other parts of 
the State, who assailed him with much virulence, among whom 
was the distinguislied Sergeant S. Prentiss. 

But it has been truly said that there are times when even the 
virtues of a man provoke hostility : as Tacitus has expressed it, 
" Nee minus perimdum ex magna favia quam ex mala /" and, 
though bitterly assailed, he did not swerve in the advocacy of 
his principles to conciliate his enemies or to soften opposition ; 
but with a conscious rectitude, based upon principle, not policy, 



i:U BENCH AND BAR OF MISSISSIPPI. 

lie boldly proclaimed liis views and fearlessly practised his pre- 
cepts. 

Governor McNiitt was uncompromising in his opposition to 
all monopolies, and fiercely antagonized the loose system of 
banking at that time tolerated by the laws of Mississippi ; and 
he predicted, as with the tongue of prophecy, the bankruptcy 
and ruin that would inevitably follow the pledging of the credit 
of the State in maintenance of such institutions. In his first 
message to the Legislature in 1838 he said : 

" Unless corporations are so modified as to subserve the pub- 
lic good, they are contrary to the genius of republican govern- 
ment ; monopolies never can be tolerated by a free people." 
And he advised the Legislature to tax the stock of all banks 
and other corporations in the State, those excepted which were 
compelled to construct railroads. In his message of January, 
1840, Governor MciSTutt pointed out with great force the 
abuses of the whole banking system of the State, and recom- 
mended the repeal of all bank charters. In this connection he 
said : 

" The exercise of the repealing ])ower is not in its nature 
judicial. The same power that grants charters is comjjetent 
to repeal them. Public policy and convenience authorize their 
creation, and if experience proves them to be detrimental we are 
required to recall the privileges granted." 

This was another ground for the most virulent assaults on 
the part of those who maintained the interest of the banks and 
advocated optional issues and unlimited circulation. 

Governor McXutt was a Democrat of the Jeffersonian school : 
open, firm, and honest in his convictions, he boldly flung the 
banner of his principles to the public view. Indeed, it may be 
said that his election as Governor in 1838 was the first but last- 
ing triumph in Mississippi of those pure principles of democ- 
racy, which have become so deeply imbedded in the pijlitical and 
civil fabric of the State. He was' emphatically a man of the 
people. He knew what was conducive to their prosperity. The 
fortunes of the State were grafted in the depths of his heart, 
and no influence could induce him to swerve from the path of 
true patriotism. Plain and unassuming, he was great within 



WALTER LEAKE. 135 

himself, *' smiled snj')erior to mere external show," and bore liis 
talents and honors with modest j. 

As a lawyer he was sagacious and true. While he nes^er con- 
tracted those habits requisite for the acquirement of profundity 
in that fathomless science, he was thoroughly familiar with the 
great principles of law, and was always master of that which was 
applicable to his cases. This his sound judgment and intellect- 
ual energy enabled him at all times to convoke and apply with 
unerring precision and discrimination, and consequently he 
was always equal to any emergency that might arise in the 
management of a cause, which he often gained in the face of 
apparently insurmountable difficulties, and in detiance of all 
forensic ostentation. His oratory was plain, logical, and enter- 
taining, and as a speaker he was a great favorite with the 
people. He acquired ^ large fortune by his practice, and by his 
sterling qualities and great services achieved a name that will 
forever shine in the annals of Mississippi. He died in the year 
IS48. 



WALTER LEAKE. 

Walter Leake was, 1 believe, a native of Virginia ; but I have 
not been able to ascertain anything as to his origin or -early ad- 
vantages. He made his advent into the Mississippi Territory at 
an early period, and in 1817 was chosen one of the first Sena- 
tors in Congress from the new State. This position he held 
with distinguished ability and fidelity until the year 18:20. 

At the expiration of his term in the United States Senate, he 
was appointed a judge of the Circuit Court, in which position 
his career was marked by a thorough exposition of the law and 
a strict adherence to the principles of justice. 

He presided in the Circuit Court until 1822, when he was 
elected to succeed Mr. Poin dexter as Governor of Mississippi. 

While Governor his messages were replete with sentiments of 
pure patriotism and with sound advice. He was a strenuous 
advocate of every measure that tended to elevate the masses of 
the people, and to nourish the spirit of independence and State 
pride. 



136 BENCH AKD BAR OF MISSISSIPPI. 

His knowledge of law, together with his keen and discerning 
judgment, enabled him to detect and suggest a remedy for many 
abuses in our system of judicature. In his message to the Leg- 
islature in 1825, he deprecated the practice of permittino- the 
presence of young and unskilled district-attorneys in the grand 
jury rooms, where from ignorance or design they might*^ and 
no doubt often did, mislead the juries as to the law. ' He 
thought that the grand jurors should be chosen from the most 
intelhgent and upright citizens, and should receive their instruc- 
tions and advice directly from the judges, without being in any 
wise subjected to the influence of the district-attorneys. 

At the expiration of his gubernatorial term, in 1826, Gov- 
ernor Leake resumed the practice of his profession. He was 
an erudite lawyer, and a man of stanch integrity • and if a 
sound judgment and a deep sense of patriotism characterized his 
public career, his professional was no less distinguished for the 
honor, industry, and ability, by which it was illuminated ; while 
lus private character was adorned with graces and virtues which 
rendered him a favorite of society, and a true tvpe of the 
Southern gent em an. Governor Leake was a warm advocate of 

tu e he .aid : ' Wlnle we contemplate the condition of the (Affer- 
ent nations o the earth, it is a source of the highest grat fic- 
tion and ought to excite our deepest gratitude to\he A^itl r of 

Xre':;vil d"";^^'^ W been cast in aland of freedon 
Miere civil and religious liberty are fully enjoyed and the 
I'^htso the people r^ ,.,, .,,,, ^ L'ne'bel : 

.y then own agency. The people, being possessed of the 
Sr W' of the State, and all autho4 exercised by tl^ 

l..^cc .hich will enable them to know and understand those 

2 How important, tlien, is it that every avenue of informa- 
lon should be kept open to them ; that a general diffusion of 
knowledge sliould be encouraged by proinoLg and .^Z th 
means of education tliroughout our State "" 

-Without knowledge, republican virtue must dwindle to a 



EUGENE MAGEE. 137 

shadow, and tlie people, in ignorance of their rights and privi- 
leges, will easily be made instruments by artful and designing 
men for the destruction of their liberties." 



EUGENE MAGEE. 

The subject of this sketcjh was born in Ireland, and had there 
received an excellent education in the best schools of the Jesuits, 
preparatory, it is said, for holy orders in the Catholic Church. 

It is not known at what time Mr. Magee came to this coun- 
try. In 1830 he was a law partner of Judge George Coalter, 
in Yicksburg, where he enjoyed a fine practice, and in 1835 
represented the counties of Warren and Washington in the State 
Senate. 

Mr. Magee was a man of powerful native intellect as well as 
of extensive literary acquirements ; was well read in his pro- 
fession, and possessed in a high degree that vivacity of intellect 
and store of humor so characteristic of an educated man of his 
nativity and race. His vehemence in debate, his aggressive 
zeal, caustic but good-humored wit, combined with no ordinary 
degree of eloquence, soon gained for him great popularity and 
success at the bar. He possessed a vigor and winning manner 
that threw a halo of interest around his subject, and readily en- 
listed sympathy in his cause. This done, it was not difficult 
for him to gain the favor of prejudice, if not the conviction of 
■judgment. He had, no doubt, studied thoroughly the intricate 
system of common-law pleading, and was remarkably acute and 
accurate in the preparation of his cases, and in the discussion 
of all questions arising from the pleadings. He was a man of a 
kind and generous heart, and his varied accomplishments ren- 
dered him a favorite in society. He lived but a few years after 
his appearance at the bar of Mississippi, and died of a pul- 
monary affection which had for some time rendered his health 
delicate. Mr. Magee was in many respects a man of note, and 
it is to be regretted that so little is known of his history. 



13S BENCH AND BAR OF MISSISSIPPI. 

EDWAPvD C. WILKINSON. 

The subject of this sketch was a native of Virginia, and emi- 
t^rated to Mississippi in the year 1830. Judge Wilkinson de- 
scended from a good family, and was thoroughly educated be- 
fore he entered the arena of the forum. Arriving first at 
Natchez, then the Athens of Mississippi intelligence, and long 
the seat of her legal renown, he found there no oj)ening suitable 
to his aspirations ; hence, after also inspecting the prospects for 
a young lawyer in the city of Yicksburg, he visited Yazoo City, 
M-hcre he finally located and began the practice of his profession, 
in which he rapidly rose to distinction and eminence ; indeed, 
so brilliant was his career and so highly esteemed were his abil- 
ities and virtues, that in 1833, but three years after his advent 
to Yazoo, he was chosen a judge of the Circuit Court of that 
district. 

The career of Judge Wilkinson upon the bench was charac- 
terized by a high degree of abilitj' and an untarnished integrity 
and uprightness. He was the soul of honor and refined senti- 
ment, to which was added the sanctifying influence of piety. 
Yet he was a man of a naturally impetuous and fiery tempera- 
ment, and predisposed to the influence of present impulse. It 
was owing much to a momentary uncontrollable impulsion of this 
(puility that he was precipitated into an unfortunate affray at a 
hotel in Louisville, in w^hich it became necessary, in defendin^g 
himself arid brother, to slaj one of his antagonists, and for which 
he was tried for nmrder before a Kentucky jury. 

The aifair occurred under the most trying and peculiar cir- 
cumstances. Judge Wilkinson was in Louisville for the par- 
pose of marrying a beautiful and accomplished young lady in 
that city. The marriage feast was prepared, and all things in 
readiness for the happy consummation, which \vas to have oc- 
curred on the next evening, when the demon of fate rolled his 
stone in the pathway of golden bliss. 

On the night prior to that fixed for the wedding. Judge Wil- 
kinson accompanied his brother to the establishment of a tailor, 
from whom the latter had ordered a suit of clothes ; and the fit 
of the garments being bad, sharp words and finally blows were 



BUCKNEE C. IIAKRIS. 139 

passed between the parties. The tailor, collecting his friends, 
followed them to their hotel, and a violent assault was made on 
Judge Wilkinson and his two com])anions as they descended 
from their rooms to the supper-table. The result was the death 
of two of the assailants. 

It was on the occasion of this trial that Sergeant S. Prentiss 
made one of his most powerful speeches in the defence. Tlie 
particulars of this trial will be found in the sketch of Mr. 
Prentiss, to which the reader is referred. Judge Wilkinson and 
his friends were honorably acquitted, upon the ground of self- 
defence, which was their only plea. 



BUCKNER C. HARRIS. 

Buckner C. Harris was a native of the State of Georgia, and 
belonged to a family of high social standing and intellectual 
repute. After receiving a thorough education and tlie usual 
training for the profession of law, he removed to the State of 
Mississippi, about the year 1830, and settled in the county of 
Copiah. Here he soon acquired distinction in his profession, and 
in 1833 was chosen to rej^resent the counties of Copiali and 
Jefferson in the State Senate, in which by his energy and ability 
he attained a position of eminence and influence. Pie was an 
active participant in all proceedings of an important or general 
nature transacted in the Senate during his connection with that 
body, and it was there that his character and abilities were Urst 
fully disj^layed to the view of the public ; and from that time 
so rapid was his progress in the path of professional eminence 
that in 1837 he was elected judge of the Circuit Court. 

The career of Judge Harris, during the short time that he re- 
mained upon the bench, was characterized by a display of the 
most eminent qualiiications, and an exhibition of all those noble 
traits of character which constitute the mantle of juridical re- 
nown. 

He was learned in all the branches of the Jaw, familiar with 
the settled principles of right, and administered justice with a 
stern and inflexible hand, in which he was prompted not only 



140 BENCH AND BAE OF MISSISSIPPI. 

by a penetrating perception and sound judgment, but also by a 
sensitive conscience and a controlling love of equity. He pos- 
sessed in an eminent degree the respect and confidence of both 
the bar and the people, hence his rulings and decisions were 
o-encrally received with confiding satisfaction. 

Judge Harris was unquestionably a man of unswerving honor 
and refined sensibilities. His kindness and amiability were 
equally conspicuous with his integrity on the bench and his 
sense of duty at the bar, and there is no telling what might 
liave been the measure of bis professional achievements had he 
remained in the field where his character had already assigned an 
unbounded scope to his fame and usefulness. At the expiration 
of his term of office as circuit judge, in 1841, Judge Harris re- 
tired from the bench and resumed his practice at the bar, and 
soon after the annexation of Texas to the United States he re- 
moved to that State, where he resided until the time of his 
death. 



JOHN T. McMUP.RAN. 

The subject of this sketch was a native of Pennsylvania. 
After having received a good education he was sent to Cliilli- 
cothe, Ohio, where he read law in the office of his uncle, Judge 
Thompson, who then represented that district in Congress. 
Here he was thoroughly trained for the profession of law, and 
having obtained license to practise he came to Natchez, Missis- 
sippi, about the year 1828, bearing a letter of introduction from 
his uncle to General John A. Quitman, wlio had resided a short 
wliile at Delaware, Ohio, prior to his advent to Mississippi, but 
was now a member of the distinguished firm of Griffith & 
Quitman, in Natchez, the most successful firm at that time 
in the State. In consequence of his letter of introduction, Mr. 
MclVIur ran was engaged in tlie office of these gentlemen as a 
clerk, in which position the extensive business of the firm 
afforded him an ample opportunity for perfecting his knowledge 
of law, and for familiarizing himself with all the details of prac- 
tice. Of this advantage lie availed himself to such a degree 
that, upon the death of Mr. Griffith from yellow fever in 



JOHN T. McMURRAN. 141 

1829, he became the partner of General Quitman. Tlie career 
of the new firm was successful in the highest degree, and 
Mr. McMurran soon gained the ascendency of even his distin- 
guished partner, and took his position in the very front rank of 
the profession. 

Mr. McMurran possessed a vigor, perseverance, and inquisi- 
tiveness of mind which permitted nothing to pass from under 
his observation without his thorough comprehension of its char- 
acter and import ; and to these trained habits of sensation and 
perception was added a cultured and well-regulated judgment. 
"While such qualities assert their superiority in whatever sphere 
they may be exercised, the capacity of minute and accurate 
attention is of all others the most important qualification 
for success at the bar, and when it is nurtured and moulded 
into professional habit, it is to genius a sure passport to the 
sphere of eminence. 

iVIr. McMurran's knowledge of the law was profound and 
exact. He was methodical and laborious in the preparation of 
his cases, and always well armed with precedent and authority'. 
While his oratory was void of ornamentation, it was forcible, 
logical, and laden with argument. He readily perceived the 
main points of a question, and addressed himself to the gist of 
the controversy — a rule which commends itself both from its 
utility and the sound sense by which it is dictated, and wliich. 
if more imiversally observed, would greatly redound to the ex- 
pedition of the courts and the attainment of justice, while it 
would often relieve a heavy burden from the patience of both 
judge and jury. 

As a man, Mr. McMurran was mild, amiable, and conciliatory, 
and possessed a fund of quiet humor and anecdote, which ren- 
dered him highly interesting and pleasing to juries, and a most 
agreeable companion in social intercourse. 

His wife was the daughter of Chief Justice Turner, a lady 
whose accomplishments were in every way worthy of the char- 
acter of her husband, and Avho, no doubt, afforded him that 
encouragement, in his struggle with his extensive practice, 
which only the smile of loveliness can inspire. 

While Mr. McMurran was a stranger to the sway of prejudice 



142 BENCH AND BAR OF MISSISSIPPI. 

and passion, lie was yet a man of strong convictions, firm in 
his embrace of principle, and open and candid in the expression 
of his opinion. But the law was his chosen sphere, and to that 
he devoted all the energies of his character. He seems to 
have manifested but little ambition for political preferment— a 
field in which his marked executive abilities would have, doubt- 
lessly, achieved an eminence fully commensurate with that he en- 
joyed at the bar, where his career was a model of successful, in- 
telligent labor, and an exemplary exhibition of the shining vir- 
tues of industry, integrity, and truth. 

His death was the occasion of general regret, and his loss, not- 
withstandiTig the exclusive privacy of his life, was viewed as a 
public calamity. 

SAMUEL S. BOYD. 

Mr. Boyd was a native of Maine, had enjoyed ample advan- 
tages in early life, and was said to have been the best educated 
lawyer that ever appeared at the Natchez bar. His scholarly at- 
tainments were united with great intellectual vigor, unwearied 
application, and a sparkling vivacity of comprehension. He 
made his appearance in Mississippi about the year 1830, formed 
a copartnership in law with Judge Alexander Montgomery, and 
in a few years was found in the front rank of the bar of the 
State. 

As a lawyer he was profound and sagacious, with an alertness 
and penetration that knew no surprise, and which baffled every 
effort of undue advantage. His knowledge was as vast as the 
range of thought and the bounds of jurisi^rudence, while his 
judgment was commended by an accurate perception and ready 
comprehension of the analogies and relations of facts. 

In 1837 he was one of the special judges appointed to try the 
case of Vick et at. vs. the Mayor and Aldermen of Vicksburg, 
in the High Court of Errors and Appeals, and delivered the 
opinion of the court. This opinion is able and eloquent, and, 
in view of the novel features of the cause, is enunciated with re- 
markable clearness and vigor. It evinces a perfect familiarity 
with the subtle and unsettled questions of law involved, and the 



SAMUEL S. BOYD. 148 

eonchision is reached by an irresistible train of syllogistic reason- 
ing ; bnt npon a different estimate of facts it was reversed by 
the Snpreme Conrt of the United States. 

Ilis brilliant command of language gathered the most elegant 
and forcible phrases for the enunciation of his views. Full of 
pathos and sentimentality, whatever opinion he adopted, or 
principle he espoused, was grafted in his belief, and his zeal 
was warm with the ardent glow of conviction. This vehement 
and emotional earnestness of manner gave great weight to his 
utterances, and commended his vjcavs to the conviction of 
others. 

Prodigal with learning and research, his style of orato- 
ry was incisive, cogent, and demonstrative, while his illustra- 
tions Avere apt, energetic, and lucid. Possessed of every ac- 
quired qualification, he was only deficient in that " divine 
afflatus" which alone can give model to the perfect orator. 

In social life Mv. Boyd was bland, polished, and refined, and 
was a ftivorite in society. He married the daughter of James 
C. Wilkins, Esq., the pioneer cotton merchant of Natchez, and 
one of its most eminent citizens. But, while surrounded with 
accumulated Avealth, standing face to face with every prospect 
of greatness and every promise of happiness, Mr. Boyd, like 
many of our most eminent men, died in the jjrime of life, on 
the threshold of his honors, and in the full-blown flower of his 
genius, lie was truly a man of eminent merit, and his name is 
entitled to a bright place in the annals of our bar, where monu- 
ments of true worth are built only of hearts, and the memory of 
greatness lives in the veneration of the great. Ibl emicat hi 
ceternum. 



U4 BENCH AND BAK OF MISSISSIPPI. 

SAMUEL P. MARSH. 

Samuel P. Marsh was born in South Carolina, and educated 
at the university of that State. He was the son of a Baptist 
preacher who emigrated to Mississippi and settled in the county 
of Amite, where the subject of this sketch began his career. 
Mr. Marsh was considered a superior lawyer, and achieved great 
success at the bar. He was deeply read in his profession, and 
indefatigable in the preparation of his cases. He often ap- 
j)eared before the Supreme Court of the State, and his briefs and 
aro-uments evince much learning and research. He was evi- 
dently a lawyer of vast resources, possessed of keen perception 
and logical powers of a superior order. His familiarity with 
reported decisions was amply verified, and he invoked them with 
much aptitude and force. 

He was a stanch Carolinian in politics, and entertained the 
extreme tenets of that school ; but his devotion to the duties of 
his profession precluded him from active participation in the 
political contests of the period, and the only record of his ability 
is the eminence which he achieved at the bar — a characteristic 
which would present a wholesome example to those lawyers who 
dissipate their talents and achieve no eminence at all. While Sir 
Edward Coke boasted that his Institutes contained three hun- 
dred quotations from Yirgil, their frequent inapplicability 
evinces the weakness of his literary vanity ; and, while it is true 
that " A lawyer," as he says, " professeth true philosophy, and 
therefore should not be ignorant of either beasts, birds, creep- 
ing things, nor of the trees, from the cedar of Lebanon to the 
hyssop that springeth out of the wall," yet the proverb that 
" Lady Common Law must lie alone" will not permit it to be 
wedded with impunity to the absorbing abstractions of politics. 
While the law is the best and even necessary school for the poli- 
tician, yet he miist bid adieu to the forum when he enters upon 
the hustings. 

Mr. Marsh died in the meridian of his manhood and forensic 
success, and the monotony of his professional life was justified 
by his professional eminence. 



JOHN IIENDEESON. 145 

JOHN HENDERSON. 

.The subject of this sketch was a nativ^e of the Nortli, but emi- 
grated to Mississippi when quite a young man, and located as 
a lawyer at TVoodville, in Wilkinson County, about the vear 
1820. He soon achieved by his application a professional stand- 
ing, while his integrity and genial deportment gained for him 
great personal popularity. In 1835 he represented the county 
of Wilkinson in the State Senate, and was the author of the res- 
olutions impeaching the validity of the Legislature in conse- 
quence of the admission of members from the counties newlv 
formed out of the Indian cession. 

He early became associated in political measures with General 
John A. Quitman, and supported the political principles of 
John Quincy Adams in opposition to those of General Andrew 
Jackson ; but finally drifted, in company with his friend, into 
sympathy with the views of Mr. Calhoun, and became a stanch 
advocate of the doctrine of State Sovereignty. 

While thus entertaining, in part, the principles of both polit- 
ical parties, he was elected, in 1849, by the Legislature of Mis- 
sissippi, to a full term in the United States Senate. In this 
body he was considered an able debater and a strong supporter 
of the rights of the States. His career rendered him popular 
with the Democratic party, and on his return to Mississippi, at 
the expiration of his term, he aligned himself with the politi- 
cians of the extreme Southern school of that period. He was 
warmly in favor of the annexation of Texas, and the conquest 
of Cuba and Mexico, and was closely connected with General 
Quitman in his views and schemes looking to these enterprises. 

In February, 1851, he was arrested, together with General 
Quitman, and put upon his trial before the United States Dis- 
trict Court at New Orleans, for violating the neutrality laws of 
1818, by his complicity with the Lopez expedition against the / 
island of Cuba, but was acquitted of the charge, and died soon 
after the tragic failure of that enterprise. 

Mr. Henderson was by no means a man of extensive literary 
attainments or of finished education, nor was his oratory mod- 
elled after the style of Cicero. But he was an able lawyer ; lie 
10 



146 BENCH AND BAK OF MISSISSIPPI. 

liad thoroughlj digested the great masters of the common law. 
His learning was deeply grounded in fundamental principles, 
which his astute discernment, sound judgment, and vigorous 
application rendered remarkably effectual in achieving success. 
The great secrets of his professional eminence were an over- 
weening self-confidence and indomitable pertinacity. He was 
never prepared to accept defeat, and clung to a case as long as 
there was a suspended thread of possibility. Consequently he 
was at all times a formidable antagonist, both in the forum 
and on the hustings. 



RICHAIiD H. WEBBER. 

Richard H. Webber, a native of Kentucky, was a person of 
limited education. It seems that he had never devoted himself 
to the acquisition of a knowledge of any branch of erudition ex- 
traneous to his profession, but to this he had applied himself as- 
siduously ; and while he was devoid, to a great extent, of that 
seemiiness of bearing and polish of manners bestowed by gen- 
eral culture, there were few lawyers of his time at the Mississip- 
pi bar who could exert a more powerful influence by the mere 
force of argument. He was a profound lawyer and a skilful 
logician, and brought to bear upon his cases a depth of research, 
a breadth of comprehension, and compactness of reason, which 
were often no less surprising than effectual. 

But while he confined his studious thoughts and investiga- 
tional labors exclusively to the law, he was by no means reclu- 
sive in his habits. He was fond of society and conversation, and 
his genial disposition rendered him popular with the people and 
a favorite at the bar. He settled in the piney woods district of 
Mississippi about the year 1825, and soon acquired a large prac- 
tice throughout the counties of that section. His ungainly fig- 
ure aiul uncomely manners, which bordered upon the ludicrous, 
80 far from exerting a repellent influence, were rather an element 
of popularity with the rude clients who at that day besieged the 
courts in those piney settlements. Like the En2:lish advocate 
Dunning, Mr. Webber was an instance of the triumph of genius 
over physical defects. The ardent congeniality of his disposi- 



IIICHARD H. WP^BBER: 147 

tion led him to an excessive participation in scenes of revelry, 
and sometimes in painful debancLery. Yet, such was the 
strength of his mental organization that, so long as his physical 
powers sustained the combat with his excesses, his mind re- 
tained its balance and in a great measure its brilliancy. An 
amusing circumstance of this feature of his character is related. 

Mr. Webber had a case in court which hung upon a demurrer, 
and, though deeply in his cups, awaited its call with the serenity 
and alertness of the most sober anxiety ; but when the case was 
taken up, the opposing counsel, whose copious potations had dis- 
armed his mental faculties, arose, and in piteous strains alleged his 
indisposition and beseeched the court for a continuance. Mr. 
Webber, aware of his advantage, and eager for the forensic con- 
test, objected to the postponement, and stated to the court that, 
while he respected the infirmities of his brother, yet he himself 
was in the same identical predicament, and that there was no 
telling when either of them would be in any better health. 
The court, comprehending the situation and relishing the amuse- 
ment of the occasion, ordered the counsel to proceed with their 
arguments ; and in consequence of the peculiarity of his tem- 
perament, Mr. Webber, though he could scarcely maintain a 
respectable physical attitude and was at a disadvantage as to the 
merits of his case, gained an easy victory over his more besotted 
adversary. 

But in sj^ite of the depth and strength of his judgment, the 
astuteness and tenacity of his logical powers, and the command 
which he jjossessed over his intellectual resources, the faculties 
of Mr. Webber, both mental and physical, were greatly enfee- 
bled by this bane of the legal profession, and enemy of all intel- 
lectual excellence, and while his "usefulness was impaired, the 
number of his days was no doubt curtailed by his unfortunate 
excesses. 



CPIAPTER V. 



CHANCERY. 

THE BEKCH CHANCELLORS AND VICE-CHANCELLORS 1821-1857 — JOHN 

A. QUITMAN ROBERT H. BUCKNER STEPHEN COCKE CHARLES 

SCOTT — JOSEPH W. CHALMERS JAMES M. SMILEY. 

In 1821, as already stated, the Legislature of Mississippi, 
upon the recommendation of Governor Poindexter, severed the 
common law and equity jurisprudence, and established a sepa- 
rate court of chancery for the State. The complex system 
which had hitherto existed amounted almost to a denial of jus- 
tice in equitable cases, and was subversive of that uniformity 
and consistency which should characterize the decisions of all 
courts of justice, and upon which hinge the rights of property 
and the safety of the citizen. It was found that after weeks of 
intense contemplation of the fixed rules and settled maxims of 
the common law, the most learned and experienced judges 
found it difficult, on opening the chancery side of the docket, 
to transfer an untrammeled judgment to the clear and open 
field of equity. It was difficult for them to suddenly and tem- 
porarily thrust their minds beyond the bar of the letter of the 
law into the true province of equity, which embraces its reason 
and spirit, and extends beyond its reach. 

While it might be practicable and feasible to maintain a com- 
bination of equitable jurisprudence with that of the civil law 
which requires every case to be referred back to fundamental 
principles, and which is really the essence and source of equit\^ 
jurisprudence, its mission is too incompatible with that strictina 
jus which constitutes the body and pith of the common law to 
be domiciled with it in one and the same jurisprudence. While 
it is true that, under our system, equity follows the analogy of 



150 BENCH AND BAR OF MISSISSIPPI. 

tlie law, if there be an analogy, yet its broad and copious prin- 
ciples declined to be harnessed harmoniously with technicalities 
or restrained by arbitrary limits. 

The act of 1821, establishing a separate and distinct system of 
equity jurisprudence in Mississippi, rescued the noble science 
from that crude and confused administration upon principles 
of imaginary conscience and supposed right to which it had 
been subjected while held subsidiary to the principles and 
practice of the common law. And since its elevation to its 
true position as a supervisor of law as well as an adjunct, it has 
hounded beyond the mere visionary views of abstract justice, 
aud, no longer subordinated to the peculiar condition uf the 
conscience of the presiding judge, has leaped upon a platform 
of fixed principles and established rules which have been 
gathered from the garnered wisdom and experience of man- 
kind. 

In no other State, perhaps, has the system of chancery juris- 
prudence been developed, in the same length of time, to a 
liigher or more felicitous degree than in Mississippi. The dis- 
tinguished gentlemen wdio have occupied that bench, have 
elaborated, both by precedent and principle, every species and 
manner of relief that justice can demand or wrong and injury 
provoke within its sphere. They have prescribed a parry for 
the vis major of every untoward event and legal accident, and 
placed the victims of misfortune in the arms of redress. They 
have afforded a mantle for the brow of error and a shield for 
the unwary against the artifice of the cunning. They have 
uncloaked the hidden transactions of fraud, both actual and con- 
structive, and vitiated every manoeuvre of falsehood and deceit. 
Indeed, they have caused the adniinistration of our courts of 
equity to shed a benign and hallowed influence on every feature 
of society and upon all the multiplied concerns of life. Two of 
these gentlemen, Hon. J. G. Clarke and Hon. Edward Turner, 
having been judges also of the Supreme Court, have akeady 
been mentioned in connection with that bench. 



JOHN ANTHONY QUITMAN. 151 

JOHN ANTHONY QUITMAN. 

In attempting a sketch of the hfe of this distinguished gentle- 
man, I shall not endeavor to follow him through the war of 
Texan independence and the Mexican war. In these his career 
forms one of the brightest pages in the history of the United 
States. It records his glowing jDatriotism, fiery valor, and nn- 
conquerable bravery, which form a part of our national pride 
and national glory. 

His name is immortally linked with the glory of Monterey, 
Chepultepec, Contreras, Puebla, and other memorable fields of 
the Mexican war, from all of which he emerged witli his colors 
sparkling with glory, and with victory perched upon his standard. 

His was the first American flag that floated over the Mexican 
capital, and he was the first civil and military governor of 
Mexico — the only American who ever ruled in the ancient 
halls of the Montezumas. 

His biography has been written in two volumes by the Hon. 
J. H. F. Claiborne, which, though I have not had the pleasure 
of seeing it, from my knowledge of the ability and eloquence 
of the distinguished author, I cheerfully recommend to the 
reader. 

The following sketch of the life of General Quitman will be 
confined to his career as a citizen and member of the Bench and 
Bar of Mississippi. The facts have been culled chiefly from 
sketches published in 18-18, during the life of General Quitman, 
by Ritchie and Heiss, and from the records of the period, which 
constitute an accurate synopsis of his professional and judicial 
career : 

The grandfather of General Quitman is said to have held an 
imjiortant and responsible office under the great Frederick of 
Prussia, and is understood to have enjoyed the personal regard 
and confidence of that monarch. His father was also a native 
of Prussia, and was educated at the celebrated University of 
Halle, where he graduated with the highest honors of his class. 

The liberal principles and free sentiments common to that and 
other Germao universities were freely imbibed by the young 
§tudent, and doubtless determined his settlement in America, 



152 BENCH AND BAR OF MISSISSIPPI. 

the theatre upon wliicli was to be solved the interesting prob- 
lem of the capacity of man for self-government. 

He arrived first in the Dutch island of Curagoa, in the West 
Indies, and while sojourning there married a daughter of the 
governor— a lady distinguished no less for her beauty and 
accomplishments than for her family and connections— and 
was accompanied by her to the United States soon after the 
close of the Revolution. This gentleman, the Rev. Dr. Fred- 
erick Henry Quitman, was equally distinguished for his piety 
and talents and for his activity and energy of character. He 
had the pastoral charge of the two Evangelical Lutheran 
churches in Rhinebeck, Dutchess County, N. Y., and was 
for many years president of the General Synod of that denomi- 
nation in the United States. He performed these various 
duties with exemplary zeal and ability, and died at the advanced 
age of seventy-two years, universally beloved and respected by 
all who knew him. His family included three sons and four 
daughters. John Anthony Quitman, the youngest of these 
children, was born at Rhinebeck, on the 1st of September, 1799. 

From such parents the son could but derive very great ad- 
vantages in natural endowments as well as in counsel and exam- 
ple. A vigorous frame, a well-balanced mind, a love of truth 
and honorable fame, undaunted resolution and industry, marked 
his early years ^ and his subsequent career but exemplified 
these traits upon a wider theatre of action, and in the practical 
and varied duties of life, showing how truly the hoy is the father 
of the man. 

At the age of ten years, young Quitman was placed at school 
in the town of Schoharie, IST. Y., and at sixteen was trans- 
ferred to the celebrated institution of Hartwick, near Coopers- 
town, in the same State, then under charge of the reverend and 
learned Dr. Ilazelius. During part of his time at this institu- 
tion he acted in the capacity of tutor, and left it in his twen- 
tieth year, to accept a professorship in Mount Airy College, 
near Philadelphia, which he held for about fifteen months and 
until he attained his twenty-first year. 

Considering the energy and vigor of his nature and the excel- 
lent opportunities he had enjoyed, it is not surprising that at 



JOHN ANTHONY QUITMAN. 153 

this period his attainments were of tlie most thorough and 
varied kind, or that he was lield at both of these institutions in 
the highest estimation for his talents and acquirements. 

It seems tliat his venerable father had contemplated his son's 
embracing his own profession, that of the ministry ; and that 
with this view, besides the usual academical course, including 
the classics and the French, Spanish, and German languages, 
his attention had been directed to the Hebrew, and to church 
history and biblical criticism, the knowledge of whicli he after- 
wards cherished and preserved by occasional study during the 
course of a busy and stirring life. 

But his own predilection was early and decided for the law ; 
and without interfering with the course of study prescribed by 
liis father, he had already, and merely in those hours which 
others might have given to amusement, qualified himself for 
admission to the bar. 

Thus having completed, at the same time, both his education 
and his minority, the time had arrived for young Quitman to 
launch his bark upon the ocean of life. Without either wealth 
or potent friends, his circumstances demanded that he should 
be the architect of his own fortune ; and with an abiding confi- 
dence in his own energy and his own powers to compass and 
achieve it, he was buoyant with the hopes of the future. Hav- 
ing obtained the consent of his father, all that was now wanting 
was a suitable location for the practise of his favorite profes- 
sion. This he determined should be in the far "West, and, with 
an outfit in books and a small sum of money, he lost no time in 
entering upon his journey to the Ohio. 

-Arriving at Chambersburg, in Pennsylvania, he found but 
a single line of stage-coaches running to Wheeling, and, unwill- 
ing to submit to the charge, $75 (the fare of a passenger, for 
every fifty pounds of extra baggage), he placed his books in a 
transportation wagon and pursued his journey on foot. At 
Chillicotho, Ohio, the location he had in view, he found that a 
law had recently been passed requiring a residence of one year 
in the State before admission to the bar, and thereupon entered 
the law office of Messrs. Brush, eminent lawyers of that place. 
In the spring of 1821, Piatt Brush, one of the firm, was ap- 



154 BEN'CIl AND BAR OF MISSISSIPPI. 

pointed to the new land office established at Delaware, Ohio, 
then upon the Indian frontier. To this place young Quitman 
accompanied him as a clerk, and, while performing the duties 
of this office, acquired a knowledge of the land system of the 
United States which was not without its value in after years. 

Having thus passed the year of residence required, partly in 
further preparation for practice, and partly in earning a 
moderate compensation for his services, he underwent a highly 
creditable examination before tlie Supreme Court of Ohio, at 
Delaware, and was admitted to the bar. 

But the distressing condition of Ohio at this period —arising 
fi-om excessive and improvident bank issues, with the consequent 
inflation and depreciation of the currency— produced a state of 
things so inauspicious to the prosperity of the community in 
which he lived, and to his own, that he determined to relin- 
quish a position in other respects pleasant and encouraging, and 
once more to seek his fortune among strangers. He according- 
ly removed to the city of Natchez, in the State of Mississippi. 

In Natchez, General Quitman's professional career may be 
said to have fairly commenced. Here he formed a coT^artner- 
ship with William B. Griffith, then an eminent lawyer,\nd by 
applying himself toliis profession with his characteristic enero-y 
and fidelity, he soon achieved, not only a lucrative practice, btt 
a respectable rank among the prominent members of the bar 

At this period he also took an active part in the consideration 
and discussion of all the important questions of the day-e.pe- 
cially those that concerned the general or local interest of the 
coimnunity in which he had established himself, and bore his 
full share in all the measures and movements tending to im- 
prove, harmonize, and ameliorate the condition of its society 
He was consequently popular in the community, particularly . 
M ith the other members of the bar and the fair sex " 

In JS24 lie married Miss Eliza Tarner, the only daughter of 

luriier, of Mississippi. 

tl,e'^hv!'T"r'-''f' ™ '" *'"^'''' "^ Mississippi, held on 

he hr.t Monday ,n Auj,„st, 1827, General Q„it,„an was elected 

by a very large majonty to a seat in the popular branch of the 



JOHN ANTHONY QUITMAN. 155 

Legislature, as a representative from the county of Adams, and, 
as a member of tlie judiciary committee, soon became promi- 
nent for activity, sagacity, and ability, even among such men as 
afterward Chief-Justice Sharkey and Judge Pray, of whom the 
committee was composed. 

Upon this theatre of action, his reputation for talents and 
business capacity rapidly expanded, and. in the next year, before 
he had attained the age of twenty-nine, he was appointed by the 
Governor (the Legislature not being in session) to the distin- 
guished and responsible office of Chancellor of the State. He 
held this office for the uninterrupted period of six years, and by 
no less than three several appointments : iirst by appointment 
of the Governor, as stated ; secondly, by unanimous election of 
the Legislature, at its next meeting ; and lastly, after the adop- 
tion of the new Constitution, which made the office elective by 
the people, he was elected without opposition. 

His decisions as chancellor were very numerous during the 
period he held that office, and are universally admitted to have 
been distinguished for beauty of style, force of argument, and 
legal acumen. Embracing as they did, in the incipiency of 
this branch of jurisprudence in Mississippi, many novel ques- 
tions, and containing sound and lucid expositions of the law ap- 
plicable to them, they contributed a valuable addition to the 
existing authorities and precedents, and well entitled him to be 
regarded as the father of chancery law in this State. 

While holding the office of chancellor, he was, in 1881, 
elected a member of the convention called to revise the Consti- 
tution of the State, and was placed at the head of the judiciary 
committee in that body. He was uniformly on the side of 
liberal principles. To enumerate the various measures intro- 
duced or advocated by him in this convention, indicative of his 
Gound statesmanship and patriotism, would swell this sketch to a 
dimension incompatible with the scope and purport of this 
work. One, however, was too signilicant and important at the 
time to be overlooked— this was a proposition to prohibit the 
Legislature from borrowing money, or pledging the faith of the 
State, for the purpose of banking. This proposition he pressed 
with great zeal, and, notwithstanding much opposition, pro- 



156 BEXCH AND BAR OF MISSISSIPPI. 

cured its adoption in a somewhat modified form as a part of tlie 
fundamental law. The provision in question will be found in 
Section 9, Art. YII., of the revised Constitution of 1832. 

We can fuUj appreciate the political forecast and judgment 
which at that time suggested this proposition, only by reflecting 
through what a glittering prospect, and dazzling glare of profit 
and success, was the danger perceived in the distance, and how 
MUieli embarrassment, not to say distress, the State would have 
escaped if the restriction he introduced had been fully adopted 
and faithfully observed. It is fortunate for Mississippi and for 
most, if not all, of the States, which have since revised their 
organic law, that this important feature of a republican Consti- 
tution, first introduced by General Quitman, stands forth as a 
perpetual barrier against a policy that has wrought so much 
mischief in our own State. 

In 1834 General Quitman resigned the office of chancellor, 
which he had filled with so much honor to himself and with 
such general satisfaction to all branches of the community, for 
the purpose of devoting his time to his private aiiairs ; but he 
was not permitted to remain long in his retirement. In the fol- 
lowing year he was elected as State Senator from the county of 
Adams. While a member of this body a vacancy occurred in 
the office of governor of the State, and the Senate" was convened 
by proclamation of the acting secretary of State for the purpose 
uf electing a president of that body, to perform under the con- 
stitution the duties of governor. The choice fell on General 
Quitman. He continued to hold the office of President of the 
Senate as long as he remained a member of that body. 

The message which, as acting governor, he delivered to the 
Legislature at its meeting in the following January, 1836, was 
regarded at the time as a masterly production, and even now, 
no one will arise from its perusal without according to it that 
character. The design of this sketch being to give some idea 
of the turn of mind and character of General Quitman, a^ well 
as the prijicipal events in his life, I will introduce a few para- 
graphs from his message, touching topics of the most general 
and important character. 

]. On the tendency of our system to centralization. 



JOHN ANTHONY QUITMAN. 157 

" To tliose who recognize the principle that the Constitution 
of the United States is a solemn compact between sovereiii^n 
States, and that the government created by it is an agency estab- 
lished to execute certain defined trust powers for the common 
benefit of the States, no apology need be offered for a brief al- 
lusion to our federal relations. Indeed the very idea of trust 
powers is necessarily associated with the superintending power 
of the political communities by whom they are delegated. Ke- 
strictions and limitations arose in a jealous sjjirit of liberty, and 
by jealous and unceasing vigilance alone can they be preserved. 
Whatever may have been the opinions of patriotic statesmen of 
the tendency of our complex political system at the period ot 
its formation and adoption, the experience of nearly half a cen- 
tury has now shown to the satisfaction of the attentive observer 
of our political history that its inclination is to centralism.'''' 

" Those who feared, in the structure of this noble fabric of 
human wisdom, that the power delegated to the different de- 
partments of the federal government would be scarcely suffi- 
cient to preserve the edifice from the assaults of State jiride, 
State ambition, and State prejudice, regarded it with the naked 
vision. They did not imagine that their successors might view 
it through the false and magnifying medium of sophistical con- 
struction ! Much less, in the golden age of patriotism which 
followed the chastening afflictions of the Revolutionary struggle, 
was it anticipated that the power," the patronage, and the fiscal 
means of the general government, would ever be used as the in- 
struments to control the freedom of elections, to overawe the 
spirit of republican independence, and to perpetuate power in 
the hands of those who might wield it." 

2. On education. 

" I will not be deterred by the triteness of the subject from 
most earnestly calling your attention to the cause of education. 
The Constitution imposes its encouragement on us as a sacred 
duty. When we reflect that in our political system every free- 
man partakes in the administration of the government, how im- 
portant is it that the means of acquiring general as well as po- 
litical knowledge should be placed within the reach of every 
man. Upon the intelligence, the wisdom, and the vfrtue of 



l.vs BENCH AND BAK OF MISSISSIPPI. 

the great mass of the people, the successful and happy opera- 
tion of our social system entirely depends. A government thus 
constituted cannot be conducted and administered wisely if tlie 
sources from which it derives its momentum be buried in igno- 
rftuce and error." 

About this time occurred an event that aroused all the sym- 
pathies of General Quitman's nature. It was the invasion, with 
tire and sword, of the then province of Texas by a powerful 
Mexican army under Santa Anna. 

Upon the reception of this news he determined, if possible, to 
stay the threatened desolation, and, placing himself at the head 
of a company of faithful followers, he hastened to join the Tex- 
ans in the defence of their liomes and firesides, and it is to be 
regretted that the scope of this work will not permit the recital 
of his splendid services in their behalf ; but his name will never 
be forgotten by the warm-hearted sons and daughters of the 
Lone Star State. 

In 1839 General Quitman visited Europe, accompanied by 
.ludge Thatcher, on business of the Mississippi Eailroad Com- 
pany. Upon his return he was appointed by the Governor a judge 
of the High Court of Errors and Appeals, to hll the vacancy 
occasioned by the death of Judge Pray. This appointment he 
declined, in consequence, it is said, of the embarrassed state of 
his private affairs, produced by his generosity to his friends. 

He now entered into a law copartnership with J. T. McMur- 
ran in the city of Natchez, and so great was the success of the 
firm tliat General Quitman, in a few years, found himself 
again in opulent circumstances. 

Distinguished as General Quitman was as a legislator and a 
lawyer, ui)on the bencli and in acting the executive, it is not 
upon his services in these several relations solely, or even chiefly, 
that his estimable reputation rests. Warmly alive to his duties 
as a citizeii toward the community in which he hved, and as a 
man to his fellow-man, he was ready at all times to accord his 
time and talents to promote the plans devised for elevating the 
condition of his fellow-creatures. In proof of this, it is only 
necessary to state his connection with various societies and insti- 
tutions having these objects in view. 



JOHN ANTHONY QUITMAN. 159 

He was president of a Society for the Suppression of Duellinir ; 
director of the State Hospital ; president of the Board of Trustees 
of Jefferson College ; trustee of the State University, of tlie 
Lyceum, and president of several literary associations. 

He received the honorary degree of A.M. from the College 
of New Jersey, and that of LL.D. from the College of La- 
grange, Kentucky. 

From 1839 to 1845, he lived comparatively a quiet life, but 
was always fond of military societies and martial exercise ; and 
the splendid military companies of Natchez attested his snperh 
skill and enterprise in this respect. But it was the occasion of 
the Mexican war that afforded that feast of opportunities which 
his ambition craved. It was there that his spirit revelled in the 
high destiny for which he was by nature constituted and in- 
tended. 

In 1845 he was appointed brigadier-general in the United 
States army, and in 1847 he was promoted to a major-general 
in the regular service. .-..,.».- •«■ - 

At the Democratic Convention in Baltimore in 1848, he re- 
ceived a very complimentary vote for vice-president, and in the 
same year was nominated by the Democratic State Convention 
of Mississippi for presidential elector. 

In 1849 he was nominated for governor of Mississippi, and 
was elected by a majority of more than ten thousand. He was 
a warm friend of the Cul)an enterprise, and deeply sympathized 
with the ill-fated Lopez expedition. He longed for the day 
when the " Queen of the Antilles" would plant its star in the 
galaxy of the I^nion. 

His open and avowed sympathies with the filibusters caused him 
to be arrested in 1851 by the United States Marshal, under the 
direction of President Fillmore, and carried from the governor's 
mansion of Mississippi to New Orleans to await his trial before 
the Federal Court, on the charge of having violated the neutral- 
ity laws. His treatment on this occasion created intense indig- 
nation in Mississippi ; and so outraged were his feelings at the 
novel proceeding tliat, on being arrested, he innnediately re- 
signed his office as governor, and tendered his resignation in a 
spirited letter of protest to the people, as follows : 



IGO BEXCH AjS^D BAR OF MISSISSIPPI. 

" To THE People of Mississippi : In ISTos^ember, 1849, I was 
elected by jour free suffrages governor of this State. My term 
of office commenced with my inauguration on the 10th of Janu- 
ary, 1850. By the provisions of the Constitution it will expire 
on tlie 10th day of January, 1852. In the middle of my term 
of office, and in the active discharge of its duties, I am to-day 
arrested by the United States Marshal of the Southern District of 
Mississippi, by virtue of process originating out of charges ex- 
hibited against me in the District Court of the United States for 
the Eastern District of Louisiana, for an alleged violation of the 
neutrality laws of 1818, by beginning, setting on foot, and fur- 
nishing the means for a military expedition against the island of 
Cuba. 

"Under these charges the marshal is directed to arrest me, 
and remove my person to the city of New Orleans, there to be 
tried for these alleged offences. 

"■ Unconscious of having, in any respect, violated the laws of 
the country, ready at all times to meet any charge that might 
be exhibited against me, I have only been anxious, in this ex- 
traordinary emergency, to follow the path of duty. As a citi- 
zen, it was plain and clear that I must yield to the law, how^- 
ever oppressive or unjust in my case ; but as chief magistrate 
of a sovereign State, I had also in charge her dignity, her 
honor, and her sovereignty, which I could not permit to be vio- 
lated in my person. Pesistance by the organized force of the 
State, while the Federal administration is in the hands of men 
M-ho appear to seek some occasion to test the strength of that 
government, would result in v^plent contests, much to be dread- 
ed in the present critical condition of the country. 

" The whole South, patient as she is under encroachments, 
might look with some jealousy upon the employment of military 
force to remove a Southern governor from the jurisdiction of 
In's State, when it had been withheld from citizens seeking to 
reclaim a fugitive slave in Massachusetts. 

" On the other hand, the arrest and forcible removal from the 
State of her chief executive magistrate, for an indefinite period 
of time, would not only be a degradation of her sovereignty, but 
must occasion incalculable injury and disaster to the interest of 



JOHN ANTHONY QUITMAN. 161 

the State by the entire suspension of the executive functions of 
its government. The Constitution has not contemplated sucli 
an event as the forcible abduction of the governor. It has not 
provided for the performance of his duty by another officer ex- 
cept in the case of a vacancy. Such vacancies cannot happen 
while there is a governor, though he be a prisoner to a foreign 
power. Although he may be absent and incapable of perform- 
ing his duties, he is still governor, and no other person can ex- 
ecute his office. 

" It follows, therefore, that in such case the State would prac- 
tically suffer some of the evils of anarchy. The pardoning 
power would be lost. Officers could not be commissioned or 
qualified ; the great seal of the State could not be used ; vacan- 
cies in office could not be filled ; fugitives from justice could 
not be reclaimed or surrendered ; the public works, the opera- 
tions of the penitentiary, and all repaii's of public buildings 
must stop for want of legal requisitions to defray the expenses 
thereof. The sale of State lands and the location of recent 
grants must be suspended. 

" The convention of the people, called at the last session of the 
Legislature, could not assemble for want of writs of election. 
In case of the death or resignation of the administrative officers 
of the State government, those important offices, including the 
treasury, would be left without the superintendence or care of 
any authorized person. In fine, the whole government of the 
State would be in confusion, and great inconvenience and per- 
haps irreparable injury flow from such a state of things. For 
all these evils there is but one remedy. That remedy is my res- 
ignation. I therefore, fellow-citizens, now resign the high 
trust confided to my hands, with no feeling of personal regret, 
except that I could not serve you better ; with no feeling of 
shame, for I am innocent of the causes which have induced the 
necessity of this step. On the contrary, although personally 1 
fear no investigation and shun no scrutiny, I have spared no 
efforts consistent with self-respect to avert this result. So soon 
as I learned that attempts would be made, under an act of Con- 
gress of the last century, to remove me from this State, I for- 
mally offered to the proper authorities of the United States any 
11 



162 BENCH AND BAK OF MISSISSIPPI. 

pledge or security to appear in New Orleans, and meet the 
charges against me, so soon as my term of office shonld expire, 
and I remonstrated against the indignity thus about to be 
offered, not to myself, but to the State, in dragging away from 
his duties her chief magistrate. 

" My proposition was not accepted, and my remonstrance not 

heeded 

" It is not for me to complain. You are the aggrieved party,. 
My course in the matter meets the approval of some of the most 
patriotic citizens near me. I sincerely hope, as it was dictated 
alone by my sense of duty to the State, it may meet the appro- 
bation of my fellow-citizens. 

' ' In thus parting from my generous constituents, it would be 
proper to give them an account of my stewardship during the 
short but interesting period that I have acted as their public ser- 
vant, but the official connection between us has been so sum- 
marily and unexpectedly severed, that I must defer the grateful 
task to a future day. 

" I have but to add that, during my short but exciting period of 
service, I have in all things striven to be faithful and true to the 
rights, the interests, and the honor of the State. For this I 
have been abused and calumniated by the enemies of the South. 
Treachery and faithlessness would have secured favor from the 
same sources. 

" Fellow-citizens, I now take w.j leave of you with gratitude 
for the generous support you have extended to me, and with 
cheering confidence that your honor and yoar interest may be 
safely confided to the hands of the faithful and able son of Mis- 
sissippi who, as president of the Senate, succeeds to my place." 

Whatever may have been the plea of justification on the 
part of the President of the United States for his course in this 
matter, it was certainly a novel incident in American history, 
and one fraught with extreme danger. If the governor of a 
State could, upon an indictment found in the Federal courts, 
and which might be instigated by partisan interest or even per- 
sonal consideration, be dragged away from his office, and incar- 
cerated in the prisons of another State, at the discretion of a 



JOHN ANTHONY QUITMAN. 163 

judge, or at tlie pleasure of the President, it would need but lit- 
tle more to clothe the latter with a power virtually as arbitrary 
as that wielded by the Czar of all the Russias. No enforcement 
act, or Ku-Kliix law, could be so utterly subversive of the rights 
of the States and of the people. 

The course pursued by Governor Quitman in this emergency 
was highly proper and honorable, and the reasons he assigns 
for his action manifest a spirit as patriotic as his prosecution 
was indicative of partisanship on the part of the administration. 

Having been honorably acquitted of the charges preferred in 
the indictment, he returned to Mississippi, and, in 1851, was 
renominated for governor upon the issue of resistance to, or 
acquiescence in, the compromise measures of 1850. He had 
strenuously opposed those acts as being unjust and oppressive to 
the Southern States. But a convention of the people declared 
for acquiescence and submission, upon which General Quitman 
retired from the canvass, but with unabated devotion to the 
South, and undiminished ardor in support of the principles 
which had so long formed the basis and embodiment of his po- 
litical creed. In 1855 he was nominated by the Democracy of 
the Fifth Mississippi District as a candidate for Congress, and 
was elected by a large majority. 

As a representative in Congress, he kindled a new lustre 
around his own name, and reflected additional honor upon his 
State. As he had been a gallant soldier, a wise judge, and a 
faithful governor, he now proved to be an enhghtened and lib- 
eral legislator. During his entire service in Congress, he was 
chairman of the Committee on Military Affairs, and by his zeal 
and ability in these matters added zest and momentum to the 
interest of the army. 

At the Cincinnati Convention of 1856, he received, on the first 
ballot, the highest number of votes for the vice-presidency, and, 
in 1857, was re-elected to Congress without opposition. He 
died at Natchez in 1858, in the harness of public service, and 
was buried on the banks of the Mississippi. Born where the 
romantic Hudson wends its murmuring way through the High- 
lands of New York, it was meet and proper that his departing 



164 BENCH AND BAR OF MISSISSIPPI. 

spirit should mingle with the voice of the Great Father of 
Waters, wliose mighty current was a fit emblem of his own 
majestic flow of soul. 

It was thought that his decease was the effect of the National 
Hotel poisoning, having dined there on that fatal day which 
cost thirty-one persons their lives, and destroyed the health of a 
great many more. Be this as it may, from that time his health 
was greatly impaired, yet he clung to his duties until the ad- 
journment of Congress. 

General Quitman possessed a genius of the highest order, and 
of an exceedingly versatile character. Whether in the forum or 
on the bench ; leading the dashing charge amid the thunders of 
battle ; issuing his decrees from the throne of the Montezumas ; 
resigning his gubernatorial chair to save the honor of his State ; 
pleading his innocence as a traitor at the bar of Federal prose- 
cution ; defending the rights of the South in the halls of the 
national Congress ; citizen or soldier, judge or politician, he 
was always equal to whatever duties might devolve upon him. 
He was sincere, honest, and unchanging in his attachments ; 
lofty, open, and manly in his opposition. Chivalry and gen- 
erosity were the ruling traits of his character ; the one baffled 
the envy of emulation, while the other conquered the bitterness 
of opposition. 

General Quitman possessed a remarkably stalwart frame, and 
was capable of undergoing the severest labor. He had power- 
ful fists, which, notwithstanding his natural amiability, he some- 
times used in self-defence or in resenting an insult, and always 
to the discomfiture of his antagonist. It was said of him that 
he never struck a man without knocking him down, except on 
one occasion, and that, he claimed, was a glancing stroke. 

As a lawyer. General Quitman had few superiors, and as a 
judge of equity but few equals ; his love of justice, keen sense 
of honor, and quick conscience, fitted him in a remarkable degree 
for the administration of the principles of equity jurisprudence ; 
and so long as the sword of Mississippi hangs in the temple of 
war, and lier voice is heard in the halls of justice ; so long as 
her niche remains in the shaft of fame, will the name of John 
A. Quitman live in the memory and the heart of her people. 



ROBERT II. BUCKNER. 165 

ROBERT H. BUCKNER. 

Robert H. Buckner was a native of Kentucky, and removed to 
Mississippi soon after the establishment of the State government, 
settled in J^^atchez, and became the law partner of John T. Mc- 
Murran. This firm enjoyed for many years a high degree of 
prosperity, and was considered one of the best in the State. 

Mr. Buckner was a man of quiet and studious habits, devoted 
to his profession, and prepared his cases with great exactness 
and care. He was fond of investigation, and was generally 
prepared to support his views by ample authority ; hence, he 
was an excellent counsellor, but was deficient in the powers of 
an advocate, and his mediocrity in this respect was greatly due 
to his modesty and meekness of manners. He possessed in an 
eminent degree that tender conscientiousness, power of patient 
investigation, and scrupulous exactness, which were so conspicu- 
ous in the character of Lord Chancellor Eldon, and which 
seemed to likewise fit Mr. Buckner especially for the chancery 
branch of the profession. 

In this respect his proficiency was distinctively acknowledged, 
and in the year 1839 he was elected Chancellor of the State. 
His career on this bench was distinguished for ability, dignity, 
conscientiousness, and industry. He had made himself thoroughly 
familiar with the whole system of equity, which he administered, 
not in a visionary and abstract manner, but in strict accord with 
the settled rules and established principles of the science, dug 
out of the records of ages and sanctioned by the wisdom and 
experience of mankind ; and to him, more than to all others, is 
due that dignified, gentle, enlightened, and complete system of 
equity judicature which adorns the jurisprudence of Mississippi. 
For six years he presided over the Superior Court of Chancery 
with a wisdom and refinement, which would not have dis- 
paraged the most eminent lord chancellor that ever directed the 
impressions of the great seal. His court was a sanctum of 
dignity and- decorum, and his decisions glow with a lustrous 
purity, doctrinal soundness, and logical clearness, unsurpassed 
by the most luminous decrees of Ilardwicke or Lyndhurst. It 
is to be regretted that so few of these, comparatively, have been 



166 EENCR AIS^D BAE OF MISSISSIPPI. 

reported ; those wliich have been preserved are found in " Free- 
man's Chancery Reports." Thej were commended as high 
authority by the distinguished Chancellor Kent, and have met 
with great appreciation wherever they have become known. 

So devoted and assiduous had been the application of Chan- 
cellor Buckner to the duties and requirements of his office that 
in November, 1845, he retired from the bench with enfeebled 
health, which continued to' decline. He died at his residence 
near the city of Jackson on the 21st of September, 1846. 

In closing this feeble sketch of this good and eminent citi- 
zen, I cannot refrain from quoting the following extract from 
an obituary written and published at the time of his death : 

" We have all sustained a loss — the whole community has 
lost a patriotic and able citizen — his friends have lost one on 
whose kindness and goodness they could always depend in time 
of trial — the legal profession has lost an eminent and able mem- 
ber, and one of its brightest ornaments, one who both as an 
advocate and counsel at the bar and as an occupant of one of 
the most important judicial positions of the land, had done 
more than almost any other man to confer dignity and honor 
upon the station in which he was placed, and to acquire an in- 
fluence and respect, throughout the State, for the court in 
which he had so long and successfully practised and presided, 
which could only be attained by unremitting ardor and industry, 
coupled with the utmost purity of motive, and a full and sole 
desire to do and accomplish right and equity between all par- 
ties. 

" In serving faithfully his country and his fellow-men in 
every situation i!i life, which he has occupied, the late Chancel- 
lor Buckner has acquired a name and a reputation, brilliant and 
untarnished, which extend far beyond the limits of this his 
adopted State, and which he has left as a bright and glorious 
legacy to his children." 



STEPHEN COCKE. 167 

STEPHEN COCKE. 

The subject of this sketch was horn in the eastern portion of 
the State of Tennessee, and in 1818, when quite young, removed 
with his parents to Cohimbus, Mississippi, where his father was 
sent under the appoiTitment as agent for the Choctaw tribe of 
Indians. Here young Cocke acted in the capacity of clerk of 
tlie agency, and subsequently as clerk of the Circuit Court. 

His general education was consequently of a meagre charac- 
ter, but he was early trained to the habits and knowledge of 
business. "While performing the duties of circuit clerk, Mr. 
Cocke turned his attention to the study of law, in which he soon 
manifested a commendable progress. Yet it cannot be said 
that he ever acquired distinguished proficiency at the bar. He 
was noted more for diligence than aptitude in his profession. 
He was an indefatigable student, fond of patient investigation, 
and even of antiquarian researches, and his success was due 
more to these qualtifcies than to any marked intellectual bril- 
liancy. 

In 1834 Mr. Cocke represented the counties of Monroe, 
Lowndes, and Rankin in the State Senate, and distinguished 
himself for his vigorous championship of the cause of the new 
counties formed of the Choctaw and Chickasaw cessions. 

At an extra session of the Legislature convened in January, 
1885, under the call of Governor Runnells, for the purpose of 
extending legislation over the thirteen new counties formed out 
of the territory recently acquired by treaty with the Indians, 
and for the purpose of admitting them to representation, their 
respective members — one from each county, as provided by the 
Revised Constitution of 1832 — ap])eared, were duly qualified, 
and took their seats in the House of Representatives ; but the 
Senate refused to recognize the legality of the House — declined 
all official intercourse with it, and immediately, upon its organi- 
zation, passed resolutions appointing a committee to "inquire 
and make report whether or not other and different persons 
than those which constituted the Legislature at its last ses- 
sion, and such others as had succeeded to fill vacancies that 
had since happened in either House, as then .constituted, 



168 BENCH AND BAK OF MISSISSIPPI. 

composed an_y portion or all of either of those bodies ; and also 
to inquire and make report whether or not the two bodies were 
80 assembled, and composed of such members and description 
of persons as were appointed, by the constitution and laws of 
the land, constituent members of the Legislature of the State, 
and whether the two bodies were so organized that the Senate, 
in concert with the other body assembled as the House of Kep- 
rcsentatives, could enter upon a constitutional discharge of legis- 
lative duties." This committee was, however, enjoined to care- 
fully abstain from making any inquiry as to the qualifications 
and election of any individual member of the House, and con- 
fine its investigations to the organization of the two bodies in 
their aggregate character, and to report the causes, if there were 
any, why the two houses, thus assembled, were not the Senate 
and House of Representatives of the State of Mississippi. 

Notwithstanding this, the Senate had, prior to the adoption of 
these resolutions, appointed a committee to act conjointly with 
members of the House to acquaint the governor of the or- 
ganization of the Legislature, but had declined, however, to 
join the House in the election of a United States Senator. 

As these entire proceedings are novel in our legislative his- 
tory, and the report of the committee, of which Mr. John Hen- 
derson was chairman, contains an interesting discussion of the 
legal qualifications and of the mode and manner of electing 
members of the Legislature, its substance is here given. They 
reported that, in entering upon the duties assigned them, they 
had found all the essential facts to which the several resolutions 
had pointed their attention as circumscribed in their detail and 
simple in their character, and which in substance were briefly 
these : That, since the last adjournment of the Legislature, on 
the 25th of December, 1833, a writ of election had been 
iss\ied by the Governor, and dated 4:th of November, 1834, au- 
thorizing and requiring an election in each of the new counties 
(sixteen in number) to be holden on the second Monday and 
day following in December (then) next, to fill a vaccmcy re-ported 
as existing in each of said counties for one representative. 

The counties to which this writ of election was respectively 
addressed were created by the Legislature on the 23d day of 



STEPHEN COCKE. 169 

December, 1833 ; and by the apportionment law of the 25tli of 
December, 1833, there was assigned to each county, respective- 
ly, one representative, in the next iiennial session of the Legis- 
lature / that a special session of the Legislature, elected in No- 
vember, 1833, and continuing till the next ensuing election in 
November, 1835, had been convened ; and that at this special 
session members from nearly all of the new counties had been 
returned under the election so by the Governor's writ directed, 
and had been qualified and had taken their seats as members of 
the House of Representatives, 

That, from the foregoing facts, it became a difficult and im- 
portant duty to so apply the principles of the Constitution and 
laws as to correctly ascertain whether the two bodies thus 
assembled were the respective branches of the Legislature, or 
whether there were such defect and irregularity in the organiza- 
tion of either body as to preclude it from the legal discharge of 
legislative duties. 

That, by the fifth section of the schedule in the Revised Con- 
stitution of the 26th of October, 1832, it was provided that the 
members of the Legislature first thereafter to assemble should 
be elected on the first Monday and day following, in December, 
1832, but to continue in office only until the next general elec- 
tion, which should be held on the first Monday and day follow- 
ing, in November, 1833, and that, from the latter date, elections 
should be biennial. 

That, in pursuance of these provisions, the members elected 
on the first Monday and day after, in November, 1833, alone 
composed and continued the Legislature until the regular elec- 
tion in November, 1835. 

The committee deduced the ioWowmg postulata from the pro- 
visions of the Revised Constitution : 

First. That the Legislature was of two years' continuance. 

Second. That general elections were fixed at the expiration of 
every two years. 

Third. That they date their commencement from November, 
1833. 

Fourth. That representatives should be chosen every two years. 



170 BENCH AND BAK OF MISSISSIPPI. 

Fifth. That the tenure of their office was for the term of two 

years. 

They then pleaded, in support of their views, the apportion- 
ment acts, and the disruption of existing assignments by the ad- 
mission of the new members, but admitted the debatable ground 
presented by the following provision of the Constitution : 

" The Legislature shall, at their first session and at periods of 
not less than every four nor more than every six years until the 
year 1845, and thereafter at periods of not less than every four 
nor more than every eight years, cause an enumeration to be 
made of all the free white inhabitants of this State, and the 
whole nuniber of rejyresentatives shall, at the several periods of 
making such enumeration, he fixed hy the Legislature, and ap- 
portioned among the several counties, cities, or towns, entitled 
to separate representation, according to the number of free 
white inhabitants in each, and shall not be less than thirty-six 
nor more than one hundred : Provided, however. That each 
county shall always be entitled to at least one representa- 
tive." 

This the committee endeavored to parry by arguing its want 
of consistency : That one of the principal rules laid down, not 
only to point the acumen of the jurist, but founded in the 
plainest dictates of common-sense, to direct the mind in ascer- 
taining the object and meaning of any instrument, is to consider 
it as a whole, and so to construe it, if possible, that some sense 
and consistency shall be found in all its parts. 

That it could never be believed, because absurd and irra- 
tional, that any instrument, willingly and honestly executed, 
could at the same time be intended to contain rules or princi- 
ples in direct opposition to each other. More assuredly was this 
true of an instrument containing the great and fundamental 
rules for the government of a free people, and drafted with that 
deep reflection and careful deliberation which it must be be- 
lieved were bestowed upon it by those appointed to discharge 
the high and solemn trust of its preparation. That it was 
scarcely conceivable that an instrument executed under such 
circumstances, where every line was scanned and canvassed and 



STEPHEN COCKE. 171 

debated for weeks together, could possibly contain principles ot 
an unqualified contradiction. 

Keeping in view these principles and the provisions of the 
Constitution, the committee proceeded to ask, " Whether before 
an enumeration liad been actually made of the free white in- 
habitants, etc., as directed, there was any mode, directly or in- 
directly, by which the apportionment of senators and representa- 
tives could be changed without a palpable violation of the Con- 
stitution, which provided tliat, until the first enumeration should 
be made, the apportionment should remain as was then fixed by 
law. They contended that the clause providing for " at least 
one representative from each county" was not a substantive and 
independent riglit attaching as an incident to each county at its 
creation, and to all counties by virtue of their existence as such, 
but that it was an imperative direction to the Legislature to 
guide it at the time of fixing the apportionment of representation. 
On tlie creation of a new county, " when," say they, " does this 
right of representation attach ? On enacting the law forming 
the new county ? Without further legislation, how is the new- 
county to organize ? When and how shall its elections be 
holden, and who shall be its returning officers ?" That it 
could not be presumed that any would contend that a new 
county, on its mere creation as such, could effectually prefer its 
representative pretensions based upon this proviso, as svl)- 
stantwe, unqualified, and independent. 

Such were some of the grounds urged by tlie committee in 
support of their conclusion, which was that the body then 
assembled in the House of Representatives was not, in verity, 
the House of Representatives of the State of Mississippi. 

This report was adopted by the Senate, to which ]\lr. Cocke 
dissented, and offered the following protest : 

" The undersigned Senator, from tlie senatorial district com- 
posed of the counties of Monroe, Lowndes, and Rankin, asks 
leave to enter his protest against tlie agreement of the Senate 
to the report made by the select committee, to whom was 
referred certain resolutions by the Senate, seeking to inquire 
into and make report, whether the two bodies, of which the 



172 BENCH AND BAE OF MISSISSIPPI. 

Senate is one, and now assembled under executive convocation 
as the Legislature of the State of Mississippi, be or not the 
Legislature recognized and established bj the Constitution and 
laws of the land. 

" In looking into the said report, the attention of the under- 
signed was strikingly called to the readiness of the said commit- 
tee to vindicate the constitutional organization of the Senate, and 
thereby their own qualifications. This was within the admitted 
constitutional province of the Senate ; and had that body con- 
tented itself with its own organization, the important legislation 
required by the country could have proceeded harmoniously to 
its legitimate consummation. But in the proceedings aforesaid 
the Senate has not only eulogized its own organization, but has 
usurped the province of declaring the organization of the House 
of Eepresentatives, 'the co-ordinate branch of the Legislature,' 
obnoxious to the Constitution. The right of the Senate to 
assume such an attitude is not to be found in any article of the 
(Constitution, is a violation of the common rules and courtesy 
necessary in all legislation, is altogether unprecedented, and is 
without all legitimate principle. The only articles in the Con- 
stitution which bear at all on this branch of the subject con- 
tain the following language : ' Each House shall judge of the 
qualifications and elections of its own members.' ' Each House 
may determine the rules of its own proceedings,' etc. The un- 
dersigned is therefore compelled to pronounce that the Senate, 
in taking jurisdiction of the subject at all, hath assumed a 
superintending and appellate control over the exclusive province 
of the House of Representatives, denied to the Senate by the first 
principles of the Constitution. It is impossible to read the Con- 
stitution of this State without being impressed with the fact 
that the convention, in making the distribution of the powers 
of government, assigned them to three distinct departments : 
those which are legislative to one, those which are judicial to 
another, and those which are executive to another, and as nmch 
right had the Senate to usurp the executive and judicial 
authority of the State, as the exclusive legitimate province of the 
House of Representatives. 

" The distinctive character of the representative principle of 



STEPHEN COCKE. 173 

our government is, that the people in the distribution of the 
powers have kept them separate, and dechired that ' no person 
or collection of persons being of one of the departments shall* 
exercise any power properly belonging to either of the others. ' 
They have alike reposed confidence in each, have required of 
each the same moral sanctions, and made each responsible to 
them for the faithful discharge of public duty. The House of 
Representatives, by admitting the members from the new coun- 
ties to qualify and take their seats, acted within its exclusive 
jurisdiction. The Senate hath therefore assumed an unwar- 
rantable interference with matters which the Constitution has 
wisely allotted to the determination of others. » . 

" The evidences of the constitutional organization of the 
House of Representatives and of the Senate were at the com- 
mencement of this session reciprocally communicated to each 
other and they united in the passage of a joint resolution ap- 
pointing a joint committee to inform the Governor of their read- 
iness to proceed to business. This committee performed its 
duty, and both Houses didy received the Governor's message. 
The undersigned had hoped that these proceedings were indica- 
tive of the disposition of the Legislature to enter upon the dis- 
charge of its duties ; but this hope, he soon found, was illusory, 
and the proceedings of the Senate hath resulted in the sena- 
torial declaration that there is no House of Representatives, and 
thus concluded this session of the Legislature." 

Mr. Cocke then proceeded to argue that apportionments were 

to be made by the Legislature at stated periods, and not oftener 

than once in four years ; whereas new counties mio-ht be created 

... . m 

at every session, and that as the liability of taxation followed 

immediately upon the erection of a new county, the right to 
representation was a substantive, independent, and immediate 
right, recognized and provided for by the constitutional clause 
declaring that every county should have at least one representa- 
tive ; and that consequently it was impossible for the Constitution 
to contemplate the existence of a new county for four or more 
years, bearing all the burdens of government with no voice in 
its legislation. This was the sum and substance of his argu- 
ment, which he did not, liowever, express in very elegant or 



174 BENCH AND BAR OF MISSISSIPPI. 

forcible language, but with sufficient clearness for easy compre- 
hension. 
. The position taken hy Mr. Cocke was also maintained bv 
Governor Runnells, who, in a communication made to the Senate 
in answer to a notification of its intention to adjourn that day, 
declared that " The right of a bare majority of the Senate, or 
indeed the entire number of that body, to adjudge of the consti- 
tutionality of the House of Kepresentati v^es is denied in the 
broad and unquestionable language of the Constitution." Upon 
the reception of the message containing this clause the Senate 
immediately adjourned sine die. 

The House then, refusing to acknowledge the adjournment of 
the Senate for a longer space than three days, appointed a com- 
mittee to apprise the Governor that the two Houses of the Legis- 
lature had disagreed as to the time of adjournment, whereupon 
his Excellency issued his proclamation proroguing the Legisla- 
ture until the next regular session, and it accordingly stood 
adjourned. 

In 1845 Mr. Cocke was elected Chancellor of the State. 
This office he held for the full term of six years. He was not 
popular as chancellor, and acquired no distinctive eminence on 
the bench. His elevation was, no doubt, due in a great meas- 
ure to his popularity in the Legislature, and to his efforts in 
behalf of the new counties. 

His decisions manifest neither a high degree of legal acu- 
men nor lucidness of style, but by patient and laborious applica- 
tion he succeeded in keeping the beaten track of his more emi- 
nent predecessors, and availed himself closely of prece'dents. 



CHARLES SCOTT. 175 

CHAELES SCOTT. 

■" Chancellor Scott was born in Knoxville, Tennessee, on the 
12tli of" November, 1811. He was a descendant of a Virginia 
family, noted for its production of many distinguislied soldiers 
and eminent statesmen. His father, Edmond Scott, was an 
eminent lawyer and judge, distinguished for his eloquence and 
ability, and presided for nearly thirty years as circuit judge of 
the Knoxville district. 

Major Joseph Scott, the grandfather of Charles, was an offi- 
cer under Washington in the Continental army ; was severely 
wounded at the battle of Germantown, and after the war was 
appointed Marshal of Virginia by President Jefferson. Major 
Scott's brother, General Charles Scott, was also a distinguished 
Revolutionary soldier, and afterwards became Governor of Ken- 
tucky. 

Charles Scott first began the practice of law in Nashville, Ten- 
nessee, where he married, and soon afterwards removed to Jack- 
son, Mississippi, and there pursued his profession in copartnership 
with George S. Yerger, who had married his sister. This firm 
was eminently successful, and enjoyed distinguished reputation ; 
and the ability and stanch integrity of Charles Scott, together 
with his high sense of honor and amiability of character, com- 
mended him so highly to the people that in a few years he was 
elected to the office of Chancellor of Mississippi, and long pre- 
sided over the Superior Court of Chancery with great ability, 
and with the universal commendation of both bar and peojile. 

It was he who first rendered the decree in the great case of 
Johnston vs. the State of Mississippi, establishing the liability 
of the State for the payment of the bonds of the Union Bank, 
that case having been first instituted in the Chancery Court ; 
and. notwithstanding that the popular sensibilities were adverse 
to the result, the ability, purity, and sincere integrity, which 
characterized his decision, caused it^o be generally received as 
a satisfactory emanation of conscientious duty. It was affirmed 
by the High Court of Errors and Appeals. 

In 1859 Chancellor Scott removed to Memphis, Tennes- 
see, where, he conceived, a broader and more prolific field was 






176 BENCH AND BAR OF MISSISSIPPI. 

presented to the practice of liis profession, which he there en- 
tered upon with the opening prospects of a hriUiant career, but 
so soon as the clouds of war began to gather along the horizon 
he returned, in 1861, to Jackson, Mississippi, determined to cast 
his lot with his adopted State in the impending struggle. He 
had been a devoted friend of the Union, but when Mississippi 
seceded, he promptly yielded to the demands of duty, and his 
heart and hand became warmly enlisted in her cause. He 
lived, however, but a short time after his return to Jackson, 
where he died, and was buried by his beloved brethren of the 
Masonic fraternity. 

Chancellor Scott was a most devoted Mason, and as such had 
a national reputation. He was the author of two Masonic 
works, which commanded attention not only from the members 
of the craft, but from the general public, being noted for the 
learning and research displayed by their author, and also for 
the chaste style in which they are written. These works, 
" The Keystone of the Masonic Arch," and " The Analogy of 
Ancient Craft Masonry to Natural and Revealed Religion," 
still find a place in the library of every learned brother of the 
ancient order. Their author was for many years Master of 
Silas Brown Lodge, in Jackson, and afterwards was Grand Mas- 
ter of the Grand Lodge of Mississippi. 

Chancellor Scott was not only an ardent and thorough stu- 
dent of the law, but he was also a ripe classical scholar, and 
was familiar with the standard poets and writers of modern 
times, particularly surpassing most of his contemporaries in his 
knowledge of that greatest of all modern poets, Shakespeare. 
His researches had even extended farther, and much of his 
time was devoted to sacred writers, while his knowledge of the 
Bible was thorough and extensive. His studies in this direc- 
tion had convinced him of all the truths of religion, and he 
was an exemplary Christian. This sentiment pervaded his 
whole nature, and quickened a tender conscientiousness and 
amiability, which not only rendered him an ornament to society, 
but especially fitted him for the high office of Chancellor. He 
was a man of noble candor and knightly courtesy, gentle and 
affable in his manners, devoted to his friends, unwearied in the 



JOSEPH W. CHALMERS. 177 

performance of duty, and nns^verving in fidelity to liis In'gh 
trust. 

A bright Mason, lie cherished the virtue of charity ; a culti- 
vated lawyer, he loved the principles of justice ; an able and 
upright judge, he promulgated the purest doctrines of equity ; 
and a good man, his heart flowed in sympathy and generosity 
toward his fellow-men. Many of his comrades and friends are 
still living in Mississippi, and cherish his memory with feelings 
of sincere affection. 



JOSEPPI W. CHALMERS. 

The subject of this memoir was born in Halifax County, Yir- 
ginia, in the year 1807. His father. Captain James Chalmers, 
was by birth a Scotchman and a near relative of Dr. Thomas 
Chalmers, the celebrated Presbyterian divine. He emigrated 
to America soon after the achievement of its independence, and 
engaged first in mercantile pursuits and afterwards in planting. 
His enterprise and industry met with adequate rewards, and he 
became the possessor of a large plantation on Dan River, and 
the owner of numerous slaves. His son Joseph was destined 
to the vocation of a merchant, and was placed at an early age 
as a clerk in a mercantile house, where he remained until he 
arrived at the age of nineteen. But the mental restraints and 
fettering routine of a life of trade were incompatible with the 
cravings of his mind and the soaring desires of his ambition. 
He had during his mercantile apprenticeship devoted every in- 
tervening opportunity to the cultivation of his literary taste 
and to the acquisition of knowledge, and after the death of his 
father, which occurred about this time, he determined to obey 
the dictates of his desire to become a lawyer, and repaired to 
the University of Virginia, where he spent two years, and then 
entered the law ofiice of the distinguished Benjamin "Watkins 
Leigh, in Richmond. On obtaining his license, he began the 
practice of his profession in his native county, uiuler every 
promise which a thorough preparation and professional devotion 
could engender, and with every prospect which a high order of 
mental and moral qualities could vouchsafe to his ambition. 
12 



178 BENCH AND BAE OF MISSISSIPPI.. 

At the at^e of twenty-three he married Miss Fanny Hender- 
son, daughter of Alexander Henderson, of Milton, North Caro- 
lina, and the grandniece of Hon. Leonard Henderson, Chief Jus- 
tice of that State ; and, in 1835, having sold his patrimonial in- 
terest to his older brother, he determined to seek his profes- 
sional fame and his fortunes in the West, and emigrated to 
Jackson, Tennessee. Here he at once took his position in the 
front rank of the lawyers of the Western District, and was en- 
gaged in most of the important cases that came before the courts 
of that section. He w^as one of the counsel for the notorious 
John A. Murrell, when that famous robber was finally convicted 
and sentenced to the penitentiary at Nashville. While at this 
bar, he recovered ten thousand dollars damages from a wealthy 
young man who had deceived and ruined a poor young girl 
under promise of marriage, and his sj)eech on the trial of that 
cause is still remembered by the old citizens of the country as 
having been the most eloquent and pathetic ever heard at the 
bar of the Western District. 

In 1840 he removed to Mississippi, and located in the town 
of Holly Springs, where he formed a copartnership with Judge 
Alexander M. Clayton. This connection, however, subsisted but 
a short time, and was dissolved by mutual consent. Mr. Chahners 
soon afterwards became the partner of Eoger Barton, which as- 
sociation continued so long as they both lived, and constituted 
the leading law firm of Northern Mississippi. Its practice em- 
braced a wide range, and was large in every branch of the pro- 
fession. This necessitated a division of their labors ; and while 
Mr. Barton devoted his attention chiefly to the crimiual side of 
the docket, Mr. Chalmers, whose mental traits and legal ac- 
quirements seemed equally adapted to either domain, attended 
principally to civil cases and suits in chancery. 

For a period of many years there were few cases of import- 
ance before the courts of North Mississippi in which the services 
of these gentlemen w^ere not engaged. They never prosecuted, 
but so successful were they in criminal defences that through a 
long series of years, during which they defended more than a 
score of men for homicide, they n6ver failed to obtain the ac- 
quittal of tlieir clients. Chief among these defences were those 



r 



JOSEPH W. CHALMERS. 170 

of Dyson, Nelnis, and Slodge, each of whom was charged with 
murder, and their crimes attended with desperate and apparently 
hopeless circumstances. 

In 1842, the Legislature of Mississippi established a vice- 
chancery district composed of the northern counties of the 
State, and provided for the election of a vice-chancellor, who 
should hold his court in each of these counties, and which 
should have concurrent jurisdiction with the Superior Court of 
Chancery, of all cases in equity where the amount involved in 
the controversy did not exceed five hundred thousand dollars. 
To this bench Mr. Chalmers was immediately appointed bv 
Governor A. G. Brown, and held this position until the next 
regular election in 1843, when he was succeeded by Hon. 
Henry Dickenson, of Columbus. He discharged the duties of 
this office with distinguished ability, with a conscientious adher- 
ence to the principles of equity, and with a dignity and purity 
which gave elevation and honor to the new court. 

In 184G, Judge Chalmers was appointed by Governor Brown 
to the seat in the United States Senate made vacant by the ap- 
pointment of Hon. Robert J. Walker to the position of Secre- 
tary of the Treasury, and was subsequently elected by the Legis- 
lature for the short term ; at the expiration of wliich he de- 
clined re-election and was succeeded by Hon. Jefferson Davis. 

While in the Senate he was a warm supporter of President 
Polk and the measures of his administration. His speech in 
support of the Mexican War, and that in maintenance of the po- 
sition taken by the United States in the dispute with Great Brit- 
ain concerning the Oregon boundary, were regarded as the ablest 
delivered in the Senate on these questions. 

During his term in the Senate he maintained the most cordial 
relations with Mr. Calhoun, and renewed with him a friendship 
wliich had originated during the nullification troubles of 1832, 
when Mr. Chalmers offered his services to the State of South 
Carolina, an<l was made a major in the army which that State 
contenqDlated raising for the defence of its rights. 

In 1848, he was chosen elector for the State at large in the 
campaign for Cass and Butler, and made many able and elo- 
quent speeches during that canvass. He was an ardent State 



180 BENCH AND BAR OF MISSISSIPPI. 

Rights Democrat, and prominent in all the councils of his party 
and the State canvasses for manj years: He was an enthusias- 
tic supporter of John A. Quitman and Jefferson Davis in their 
contests with Henry S. Foote in 1851. He was a devoted 
Mississippian, and on his death-bed expressed the wish tnat 
none of his sons might ever abandon the State, but that they 
might live and die faithful citizens of Mississippi. He died at hi < 
residence in Holly Springs, in June, 1853, in the forty-seventh 
year of his age, from the effects of dyspepsia, from which he had 
been a sufferer for many years. He left six children, four 
sons and two daughters, only two of whom are now living — 
General James R. Chalmers, member of Congress, and Hon. H. 
H. Chalmers, Chief Justice of the Supreme Court of Mississippi. 

As a lawyer Judge Chalmers was thorough and profound. 
He possessed a vigorous grasp of intellect, a keen and ready ap- 
prehension, which could penetrate the most intricate combination 
that could be woven from the web and woof of subtlety. His 
judgment was clear and accurate, and reached with equal facil- 
ity to the gist of principle and the motive springs of action. 
His official and professional character exhibited in a high degree 
that difficult combination, a suavity of manner with the energy 
of dispatch, and blended the purity of Sir Thomas More with 
the expedition of Lord Ellesmere. 

But if he was eminent as a lawyer and judge, he was no less 
distinguished for the amiable qualities of the man and the pure 
and ardent sentiments of the patriot. His political convictions 
were deep-seated and unalterable, and he was styled the 
" Apostle of Democracy" in North Mississippi, an appellation 
which his distinguished services in promoting the interest of his 
party justly merited. He labored incessantly and arduously for 
its success, and with a confidence and vigor that kindled the 
hope of triumph even in the gloom of defeat. He was a fluent 
and forcible speaker, possessed a tasty and classical command of 
language, and his elocution was easy and elegant. While he 
was invincibly aggressive in the performance of duty and the 
advocacy of principle, his deportment was characterized by a 
modesty and decorum which asserted the accomplished gentle- 
man and magnanimous man. 




'f "S^VAugustoB BoTw-a-'^"'^ 




JAMES M. SMILEY. 181 

As a lawyer, as a judge, and as a statesman, Judge Clialmcrs 
was responsiA^e and equal to every demand of duty, met with 
promptness every requirement of honor and patriotism, and ac- 
quitted himself with distinction in every sphere of his life. He 
was enterprising, public-spirited, and generous, and was consid- 
ered as a father by the junior members of the bar and the young 
men of his town, and by his whole people as an able, upriglit, 
and useful man, whose memory they delight to clierish, and 
whose example should be followed by all who seek the path of 
virtue and the road to true greatness and honor. 



JAMES M. SMILEY. 

James Malcolm Smiley was born in Amite County, Mississip- 
pi, on the 25tli day of October, 1812. His early educational ad- 
vantages were the best which the newly-settled country could 
afford, and being of studious habits and ambitious disposition, 
he availed himself to the utmost of his opportunities. His par- 
ents encouraged his thirst for knowledge, and M^iile quite young 
he was sent to Jefferson College, at Canonsburg, Pennsylvania, 
where he remained until the establishment of Oakland College, 
in Mississippi, when he returned to his native State and entered 
that institution, wJiich was then under the management of Dr. 
J, Chamberlain, and graduated there in 1834, being the only 
member of his class and the first graduate of the college. 

He soon afterwards began the study of law in the office of Wil- 
liam Dillingham, Esq., who was then a lawyer in large practice 
at Liberty, in Amite County. Here he pursued his studies one 
year, and then rejjaired to New Orleans, where he took a legal 
course under Hon. Alfred Hennen, and obtained license to prac- 
tise under the laws of Louisiana. He then pursued a course of 
studies in the law department of Transylvania University, at 
Lexington, Kentucky, and graduated there. Returning to his 
native county, he began the practice of the law by himself, in the 
year 1837, but afterwards formed a copartnership with Hon. 
V'dn Tromp Crawford, of Amite County, which continued until 
the latter was elected to the circuit bench, after which Mr. Smi- 



182 BENCH AND BAR OF MISSISSIPPI. 

ley again practised by himself, doing an extensive and lucrative 
business in his own and adjoining counties. 

In 1841 he married Mrs. Carroll, a most estimable lady of 
Amite County, and during the same year was elected to repre- 
sent his county in the popular branch of the State Legislature. 
To this office he was twice re-elected, and closed his legislative 
career in the spring of 1846. 

In the session of 1846, an act was passed by the Legislature 
organizing what was termed a " vice-chancery district," includ- 
ing all the counties lying south of the tier through which the 
Yicksburg and Meridian Railroad passes, and in the summer of 
that year, Mr. Smiley was elected vice-chancellor of this district, 
beating his popular opponent, Hon. Powhatan Ellis, by a laro-e 
majority. The district was divided into sub-districts, and courts 
were required to be held twice a year at Natchez, Monticello, 
Mississippi City, and Paulding. The vice-chancellor, although 
comparatively a young man, was found to possess abilities equal 
to the position that he held, and in 1850 he was re-elected with 
very little opposition, and held the office until near the close of 
the year 1852, when he resigned and removed to the city of New 
Orleans. 

He there opened an office, and was soon engaged in a lucrative 
practice in the State and Federal courts. He was employed by 
Mrs. Myra Clark Gaines, widow of General Gaines, in the cele- 
brated Gaines case then pending in the courts, and it was at his 
suggestion and mainly through his efforts that the important and 
mdispensable step of probating the will of Daniel Clark, upon 
which the claimant's success depended, was accomplished : so 
that to the skill and labor of Judge Smiley Mrs. Gaines is mainl v 
mdebted for all the benefits that have accrued to her in that 
case ; and it is singular that all the compensation he received for 
his services in the matter amounted to a mere trifle. 

In 1853 he had the misfortune of losing his amiable and de- 
voted wife, who died of yellow fever. He remained in New 
Orieans until the year 1859, when he returned to Amite 
County, and was married about this time to Mrs. Southgate, of 
Newport, Kentucky, who still survives him, and cherishes his 



JAMES M. SMILEY. 183 

memory Avith a fondness characteristic of the truest and noblest 
of her sex. 

He resumed his practice in Amite County with flattering 
prospects, hut tlie outbreak of the great civil war so paralyzed all 
business that there was but little transacted in the courts during 
its existence. In October, 1865, he was elected circuit judge of 
the district including the seven counties in the south-west por- 
tion of the State, and held the office under that election until he 
was appointed by the military authorities, from which time he 
continued as judge until the adoption of the new Constitution, 
when he was again appointed by Governor Alcorn in 1871, and 
again, by Governor Stone in 1876, and continued on the bench 
until January, 1878, when increasing ill-health and infirmities 
compelled him to resign. He continued to reside at Magnolia, 
in Pike County, until the 8th of April, 1879, at which time he 
died, and was buried in Amite County, near the place of his 
birth. 

During the last two years of Judge Smiley' s term of office, 
he ordered the release on bail of several prisoners who were 
charged with murder, for the conviction of whom there was a 
clamorous popular demand, and which subjected his conduct to 
a fierce animadversion. The feeling indeed became fiercely de- 
nunciative, yet Judge Smiley pursued the even tenor of his 
way, and was never known to take the slightest notice of the 
dissatisfaction. In every instance in which the bail was granted 
the parties appeared for trial, and not in a single case was 
there a conviction by the jury of murder. 

In other instances he was censured for not bringing certain 
persons to a speedy trial who were accused of crime, and who 
were shielded behind the subtlety of appliances over which it is 
doubtful whether the judge could have any control ; but the 
censure was nevertheless severe, and he was even threatened 
with impeachment. 

The main charge against Judge Smiley was that he had ruled 
that murder was bailable. The Constitution of Mississippi de- 
clares that all cases are bailable except in " capital offences 
where the proof is evident or the presumption great," and a law, 
passed in 1875, gave to the jury the power of fixing in their 



184 BE^CR AND BAR OF MISSISSIPPI. 

verdict the penalty of murder at imprisonment for life. But as 
capital cases are defined to be those in which the penalty is 
death, Judge Smiley, it seems, was of the opinion that, in view 
of tliis definition of the term " capital offenses," the verdict of 
the jury was necessary to determine the charactei^f of the crime, 
and that consequently all cases were bailable before conviction. 
And although the Supreme Court afterward declared that such a 
position was wholly untenable, yet it is difficult to see upon what 
grounds the opinion of the aged judge could be assigned as a 
feature of impeachable corruption. 

He was also accused of fixing inadequate bail, and particularly 
was he censured in this respect in the case of the State vs. 
Bethea. In this case the prisoner was charged with murder, 
and Judge Smiley fixed his bail at two thousand dollars ; but' 
while the sum seems small as a recogjiizance to hold one to trial 
for his life or perpetual imprisonment, in view of the just and 
equitable spirit which jjervades the law of bailment, 'he was 
surely justifiable in taking into consideration the poverty of the 
accused and of the country. It may have been as difficult for 
Bethea at that time to procure satisfactory surety for two thou- 
sand dollars as for other men in other times to find surety for 
twenty thousand, and the weight of such considerations rests in 
the sound discretion of the judo-e. 

In politics Judge Smiley was a life-long and ardent Whig, 
and prior to his promotion to the bench was a strenuous and 
active advocate of the measures of that parly; but when he 
ascended the tribunal of justice, he abated all political predilec- 
tions and spirit of partyism, and devoted all his powers to a con- 
scientious and equitable administration of the law, and observed 
tliat reticence in regard to politics traditionally cherished bv the 
legal gentlemen of the old school. 

Judge Smiley possessed a remarkably kind, gentle, and ami- 
able disposition, and was an attractive and entertaining compan- 
ion. Ills conversation was free from anything that partook of 
censure animadversion, or ridicule, and with the members of 
tli^ barhe enjoyed the most intimate and fraternal relations. 
This was forcibly exemplified on the occasion of his resignation 
- judge of the Circuit Court. When it was understood at 



CHAPTEE VI. 



THE CONSTITUTION OF 1832— REMODELING OF THE JU- 
DICIARY—THE BENCH— EMINENT JURISTS— 1832-1850. 

WILLIAM L. SHARKEY COTESWORTH P. SMITH DANIEL W. WRIGHT 

JAMES F. TROTTER P. RUTILICS R. PRAT JOSEPH S, B. THACHER. 

By the Kevised Constitution of 1832 the entire system of the 
judiciary in Mississippi was remodeled, and a broader and more 
expeditious cbanne} given to the administration of justice. The 
provisions of that Constitution in reference to the judiciary were 
in substance as follows : 

The first section of the fourth article declared that the judi- 
cial power of this State should be vested in one high court of 
errors and appeals, and such other courts of law and equity as 
provided for in that Constitution. 

By the second section, the high court was to consist of three 
judges, any two of whom might form a quorum, and the Legis- 
lature was required to divide the State into three districts, the 
qualified voters of which were to elect one of these judges from 
their respective districts for the term of six years. 

Section three required that the office of one of these judges 
sliould be vacated in two years, and of one in four years, so that 
at the expiration of every two years there sliould be an election 
of one of the judges. 

Section four confined the jurisdiction of the court to such as 
properly belongs to a court of errors and appeals. 

Section five provided for the filling of vacancies by election ; 
but the Governor might appoint if the imexpired term did not 
exceed one year. 

The sixth section required the judges to be thirty years of age 
at the time of their election. 



188 BENCH AND BAE OF MISSISSIPPI. 

The seventh required the court to be held twice a year, at such 
place as the Legislature should direct, until the year 1836, and 
afterwards at the seat of government. 

The eighth section prescribed the manner in which the re- 
spective tenures of the judges chosen at the first election should 
be decided : that is, as to which should hold for two years, which 
for four, and which for six years. 

Section nine proliibited a judge from sitting in a cause in 
which he was interested, and provided for the appointment by 
the Governor of a competent person to sit in the place of a judge 
so disqualified. 

The tenth section provided that the salaries of the judges 
should not be diminished during their continuance in office. 

Sections eleven and fifteen inclusive provided for the organi- 
zation of circuit courts, and ordained that the circuit judges 
should be elected in their respective districts, for tlie term of 
four years, and should reside in their districts, and tliat, the dis- 
tricts were to contain not less than three nor more than twelve 
counties. 

Original jurisdiction in all matters, civil and criminal, was con- 
fered upon the circuit courts, provided that in civil cases the 
sum in controversy exceeded fifty dollars. These courts were 
to be lield twice a year in each county in the State. The 
judges were permitted to interchange circuits, and were to re- 
ceive a compensation, which was not to be diminished during 
their continuance in office. 

Section sixteen established a separate superior court of chan- 
cery, with full jurisdiction in all matters of equity, and provided 
for the election of a chancellor by the qualified voters of the 
State, for a term of six years, who should be thirty years of age 
at the time of his election ; but it also gave the Legislature the 
power of conferring equity jurisdiction on the circuit courts 
of each county in all cases where the amount in controversy did 
not exceed five hundred dollars ; also in all cases of divorce and 
for the foreclosure of mortjjasres. 

The eighteenth section provided for the establishment of a 
court of probate in each county of the State, with jurisdiction 
in all matters testamentary and of administration, in all affairs 



WILLIAM L. SHARKEY. 189 

pertaining to orphans and in tlie allotment of dower ; in all 
cases of idiocy and lunacy, and of persons non compos mentis. 
The judges of this court were to be elected by the qualified 
electors of the respective counties for the term of two years. 

Section nineteen provided for the appointment of the clerk 
of the high court of errors and appeals, who should hold his 
office for the term of four years, and for the election of the 
clerks of the circuit and probate courts, whose respective terms 
should be two years. Sections twenty and twenty-one provided 
for a board of police for each county, to consist of five persons, 
which should have the supervision of roads, highways, bridges, 
ferries, and of all matters of county police, and prescribed their 
mode of election and qualifications. 

The twenty-second section provided for the election by dis- 
tricts of justices of the peace in each county, and limited their 
jurisdiction to cases involving not more than fifty dollars. 

Section twenty-four authorized the Legislature to establish, 
from time to time, such inferior courts as might be deemed 
necessary, and to abolish them whenever it might be deemed 
expedient. 

Such was the status of our judiciary on the adoption of the 
Revised Constitution of 1832. Let us now turn to the distin- 
guished gentlemen who administered the laws under this new 
system. 

WILLIAM L. SHARKEY. 

The professional minds of lawyers and judges maybe divided 
and aptly assigned to two separate and distinct classes, which 
may be designated respectively the perceptive and the memo- 
rative. To one class belong those whose legal knowledge and 
perception are coterminous with the inscriptions of memory, 
and consist of a vague medley of garnered precedents and au- 
thorities, which must be resorted to and invoked on all occasions 
when it becomes necessary to grapple with any question of im- 
portance. Their knowledge of law is like that of the preco- 
cious youth who learned mathematics by committing Euclid to 
memory without comprehending a single principle involved, or 



190 BENCH AND BAR OF MISSISSIPPI. 

how a single proposition was proven. To this class usnallj 
belong those whose general education is limited, or whose 
powers of perception have never been whetted bj close and 
continued application, and always those who are naturally de- 
ficient in the organs of analysis and abstraction. 

The other class comprises those who depend upon their own 
conscious resources, who combine and embody the principles of 
law with their own perceptions, and mingle them with the ele- 
ments of their own judgment. Like Lord Thurlow, they do 
not inquire so much '■'' how the case was decided," as '' why it 
was so decided." With the first class, law is simply the result 
of memory : an undigested mass, a lurid and confused super- 
ficiality, a medley of incomprehensibilities ; while with the 
other class it is an emanation of their own minds, and they speak 
as authorities themselves. Such was eminently the case with 
Chief Justice Marshall, whose decisions required no authorities 
to support them; and such was the character of the judicial mind 
of William L. Sharkey, who for eighteen years presided in 
Mississippi as the Chief Justice of her High Court of Errors 
and Appeals. 

In treating of the character of this distinguished jurist, it 
will be difficult to steer between the Scylla of injustice on the 
one hand and the Charybdis of adulation on the other. His 
was a character of which every feature belongs to the domain 
of greatness, and whose comj)osition is found only in the lofti- 
est spheres of human existence. William Lewis Sharkey was 
born near a place called at that time Mussel Shoals, on the 
River Holston, in the State of Tennessee, during the year 
1797. His maternal grandfather, Robert Rhodes, was a native 
of Germany, from near the city of Cologne, on the Rhine. His 
father, Patrick Sharkey, was a native of Ireland, and was reared 
in the vicinity of Dublin. He came to America when a young 
man, in company with his elder brother Michael, who was 
afterwards the captain of a Virginia Company in the Conti- 
nental army during the War of the Revolution ; at the termi- 
nation of which, Patrick found his way to the new and beautiful 
country between the Cumberland and the Alleghanies. Here 
he married and settled, and here resided until his family con- 



I 



• WILLIAM L. SHAKKEY. 191 

sisted of a wife and three sons— William Lewis, Jacob Khodes, 
and James Elliot. 

In the year 1803, Patrick Sharkey removed his family to the 
Mississippi Territory — a country which at that period offered 
but the roughest features of life, especially to those who Avere 
destitute of means sufficient to command the few costly com- 
forts and conveniences that it was possible to obtain in a new 
and thinly settled community. The family fixed their abode 
on a small farm on the Big Black River, in Warren County, 
near the village of Warrenton, then the county seat. Here, 
amid the heterogeneous population of a country whose richness 
of soil was attracting all classes of people from the States, Will- 
iam Lewis Shcirkey grew to that manhood which was destined 
to shed such liTstre upon his State and upon his age. 

Compelled by the straitened circumstances of his parents 
to perform the labors incident to a farm, he had but little op- 
portunity to avail himself of even the limited educational ad- 
vantages afforded by the primitive schools of the Territory ; 
but, as if M'ith an intuitive consciousness of a grand destiny, the 
boy labored on, devoting his leisure hours to the acquirement 
of those rudiments which were to kindle the fires of genius and 
emblazon the laws of his country. 

Before the expiration of his fifteenth year he entered the 
anny of General Jackson as a substitute for his uncle, was pres- 
ent at the battle of New Orleans, and witnessed the overthrow 
of the British on the plains of Chalmette, on the memorable 
8th of January, 1815. Both of his parents having died, he 
found on his return the horrors of orphanage superadded to the 
other hardships under which he labored, and his two younger 
brothers depending upon his care. Yet, with a judgment and 
discretion rare in one of his years, he determined to remain 
upon the farm until he could earn and gamer suflicient means 
to enable him to gratify that desire for knowledge which, 
though thwarted by untoward circumstances, had always burned 
in his bosom. 

This purpose he achieved in a few years, and with deternii- 
nation in his heart, ambition in his soul, and the proceeds of 
the sweat of his own brow in his hands, he repaired to Green- 



192 BENCH AND BAR OF MISSISSIPPI. 

villc, Tennessee, and at a school of some note in that place 
acquired, by close application, a respectable knowledge of the 
English branches in a comparatively brief period. He then 
visited Lebanon, Tennessee, and there read law a short time, 
under the instruction of the distinguished Dr. Hall. 

On his return to Mississippi he entered the office of Messrs. 
Turner & Metcalf, an eminent law firm in the city of Natchez. 
Having now for the first time the practical advantages suitable 
to his inclination and commensurate with his ambition, he ap- 
plied himself to the study of law with the utmost interest and 
assiduity, and with all the vigor of his nature. The result was 
speedy and proportionate with his efforts, aad in 1822 he was 
admitted to practice at the bar of the Supreme Court, and estab- 
lished his office at Warrenton. 

Here his ability, integrity, and application, soon fruited into 
a respectable and growing practice, but on the removal of the 
county seat of Warren County to Vicksburg, in 1825, he moved 
his office to that place, and formed a copartnership with the dis- 
tinguished John I. Guion. Here, under more favorable aus- 
pices, he rose rapidly in professional reputation, and soon at- 
tained a lucrative practice. 

In 1827 Mr. Sharkey was chosen the representative of Warren 
County in the Legislature, in which he was assigned to the Ju- 
diciary Committee, with Judge Pray and General Quitman. In 
this capacity a more ample opportunity was afforded him for 
the exhibition of those eminent features of his mind which 
afterwards gilded his career upon the bench. 

On the organization of the High Court of. Errors and iVppeals, 
under the Constitution of 1832, he was elected by the people as 
one of the three judges which composed that tribunal, and was 
appointed Chief Justice, which position he held during eighteen 
years. 

Prior to this he had been elected the circuit judge of his dis- 
trict, but held that office only a few months before he was pro- 
moted to the high bench. 

About tliis time. Judge Sharkey married Mrs. Wren, widow 
of Belfield Wren, an estimable lady, whose qualities of mind 
and heart rendered her an eminently fit companion for the great 



WILLIAM L. SHARKEY. 193 

jurist, and who is yet living to clierisli the memory of tliose 
amiable qnalities which so highly adorned his private character. 

It has been said of poets that they are bom such, and not 
made ; and it is equally true that there are some men who seem 
naturally fitted and destined for the station of judges : men 
who possess great candor, in whose minds an acute discernment 
and a sound judgment are predominating faculties, and to 
whom the pursuit and attainment of justice afford the highest 
mental gratification. To this class evidently belonged Hard- 
wicke, Eldon, Hale, Mansfield, Marshall, and Kent, and to these 
I have no hesitancy in adding the name of Chief Justice 
Sharkey. 

Judge Sharkey possessed in an eminent degree that quality 
so essentially requisite in a judge — a firm and unbending integ- 
rity. !No circumstance could induce him to swerve from the 
strict line of justice. His opinions are models of legal and 
logical elucidation, and they all possess, as a prominent feature. 
a thorough analysis of the case, v/ith a view of setting forth in a 
clear and unmistakable light the relations and rights of the 
parties. His conclusions are never seized in a harsh and abrupt 
manner, but are deduced along an illuminated path in a clear, 
lucid, and logical method, so that when presented they readily 
receive the homage of satisfaction. The style of his decisions 
is forcible and elegant, rising sometimes to a chaste eloquence, 
which is the only kind that the diction of law will permit. 

During his long continuance upon the bench, Judge Sharkey 
established many eminent precedents, and settled many ques- 
tions of law that had hitherto been held in conflict both in our 
own courts and those of other States. He also made many 
novel applications of the common law to render it conformable 
to our polity and suitable to our condition and the state of our 
society. These will be found sprinkled through many volumes 
of the Mississippi State Reports. 

The all-pervading feature of his mind was a comprehensive, 
vigorous common sense — a sagacity which, while it expanded to 
the grandest outlines, did not despise or overlook the minutest 
details ; and his judgment found a subject in every concern of 
life. This faculty was the trident by which he so long ruled 
13 



194 BENCH AN"D BAE OF MISSISSIPPI. 

the " vasty deep" of common-law and equity jurisprudence as the 
Chief Justice of the High Court of Errors and Appeals. His 
mental character was admirably adjusted for grappling with 
emergencies. He was never at a loss to find a clear path through 
the most complex array of law and the most complicated state of 
facts, and whenever in a cause there was an incongruity in ap- 
plying the common law to the incidents of society, he never 
failed to sift from the antiquated principle some element com- 
patible with the justice of the case. 

In 1S50 Chief Justice Sharkey resigned, and resumed the 
practice of law in Jackson, where he then resided. It is under- 
stood that this action was induced by pecuniary embarrassment, 
arising from obligations which he had incurred as surety for 
his friends, and which, notwithstanding the respectable salary 
of his office, so rapidly diminished his means that he was com- 
pelled to return to the bar, which offered him much greater 
emolument. 

Not long after his retirement from the bench he was appoint- 
ed by Mr. Fillmore, then President, as United States consul at 
Havana. This he declined for like reasons — the state of his 
private affairs. As a politician Judge Sharkey had few supe- 
riors in wisdom and purity, and it is a noteworthy fact that 
during the whole time of his public services he was a stanch 
Whig, while his constituency was as intensely Democratic. He 
was bitterly opposed to the scheme of repudiation, which he 
considered as both ruinous and dishonorable, and at the end of 
liis third judicial term, in 1847, he was opposed by a candidate 
who was in favor of that policy, and with whom a large 
majority of the people were in accord. Yet so unbounded was 
liis official popularity, and so great was the popular appreciation 
of his services, he was triumphantly re-elected to the bench. 

Judge Sharkey was a member of the celebrated Nashville 
Convention, held in 1850, and was chosen the president of that 
body, and in this capacity his great candor, firmness, and impar- 
tiality, together with his cheerful complacency and urbanity of 
manners, gained for him universal respect and admiration. On 
tiie adjouniment of the convention he proceeded to Washing- 
ton where he was much consulted in regard to measures 



WILLIAM L. SHARKEY. 195 

proper for allaying the excited sectional feelings of that 
period. 

While in Washington, President Filhnore tendered liiin tlie 
position of Secretary of War, but this he declined, upon the 
plea of his incompetency to perform the duties pertaining to 
that office. Pie was too much of an Antonine, both in principle 
and disposition, to engage in the promotion of a pursuit which, 
under ordinary circumstances, he considered as the disgrace and 
calamity of human nature. He was emphatically a man of 
peace, and during all those trying times which preceded, accom- 
panied, and followed, the great civil war, his voice was continu- 
ally raised in its behalf. He was bitterly opposed to the seces- 
sion of the Southern States from the Union, and thought that 
an antidote for its necessity could be found in a returning sense 
of justice and in the fundamental law of the land. 

He was a faithful devotee of the Constitution, and viewed it 
as the true and only palladium of national safety and national 
happiness and prosperity ; hence throughout the long and 
bloody contest his sympathies were decidedly on the side of the 
Union — not that he did not view with pride and adnn"ration the 
glorious career of the Southern arms, and sympathize in all the 
trials and woes of his people, but that his deep-seated principles 
and unalterable convictions swayed the other attributes of his 
nature ; and no sooner had the work of blood ceased than, throw- 
ing himself into the broad breach of reconstruction, he became 
the faithful pilot and the Pythias of his people. 

In consequence of his well-known attitude prior to and dur- 
ing the great struggle, he was appointed by President Johnson, 
in 1865, Provisional Governor of Mississippi. The delicate and 
ungrateful duties of this office he performed, however, to the 
great satisfaction of all parties, and at the first election under 
the new system he was chosen a Senator from Mississippi in the 
National Congress, but before his admission to this office, the 
reconstruction policy of the President having been abrogated 
by Congress, he was, together with the other Southern mem- 
bers, refused his seat. 

This rebuff, which frustrated the efforts he contemplated for 
the reconciliation of the two sections, was met with his usua J 



\ 



196 BENCH A:N^D BAR OF MISSISSIPPI. 

complacency and good-humor, and returning to Mississippi, he 
quietly resumed his practice of law, which he continued to the 
time of his death, which occurred in 1873. In manners Judge 
Sharkey was kind and polished,. and his conversation brilliant 
and attractive. He was of a decidedly religious turn of mind, 
and took great pleasure in examining and meditating upon the 
truths of Holy Writ, He was a strict member of the Method- 
ist Episcopal Church, and died in the communion of that 
■sect. 

That was a beautiful idea in the philosophy of Zeno : that 
we dwell within the body of God ; that He is the Soul of all, 
and the universe is His body ; that the noble features of the 
body are no less worthy of veneration than the divine and 
■supreme attributes of the soul ; and this earthly veneration 
consists in the love of virtue and the exercise of that which is 
inoble in the human character. The life of Judge Sharkey was 
.a noble commentary upon this doctrine. He loved his fellow- 
iman, and his private and social life was as amiable and refining 
as his public character was brilliant and elevating. 

The simplicity of his virtues admitted no vanity or affecta- 
tion, and he enjoyed, with like modesty, the honors of his high 
office and the veneration of society, wliile a cheerf nl and serene 
temper asserted the benevolence of his nature. 

The qualities of his heart were not * strained, but flowed in 
gushing torrents from deep and unfailing fountains ; and their 
exercise found among his friends and associates a reciprocity 
that but added intensity to their character. 

Full of years and of honors, he carried with him to the grave 
the love, the admiration, and the regrets, of his fellow-citizens. 
His name is inscribed in letters of gold upon the jurisprudence 
of Mississippi, and there it will remain so long as the voice of 
justice shall be heard in the land, and will be handed down 
from age to age, through the vastness of incomprehensible 
time, as a magistrate distinguished and venerated for his talents 
and integrity, a citizen honored for his splendid public services, 
a man beloved for his untarnishable virtues. 

But it now becomes necessary to close this sketch, however 
imperfect it may be ; and with the hope that this feeble por- 



WILLIAM L. SHARKEY. 197 

traitiire imiy prov^e an incentive, especially to tlie young mem- 
bers of the profession, to imitate the virtues of its subject, I will 
close by introflucing the resolutions passed by the members of 
the bar of the Supreme Court of Mississippi, on the 19th of 
May, 1873, in reference to the death of Judge Sharkey, which 
manifest in an eloquent manner the esteem in M^hich he was 
held by his brother members of the profession. The committee 
reported as follows : 

' ' The mortal life of William Lewis Sharkey has closed — a 
life made honorable and distinguished by great public services, 
which conferred enduring public benefits. In meeting together 
to render a tribute to his memory, we are moved as well by the 
gratitude we feel for the rich legacy he has left us as by our 
profound admiration for the ability which enabled him to be- 
stow it, and the just pride we feel in his widely extended fame. 
In the infancy of the Stat6 he presided over her highest judicial 
tribunal as Chief Justice ; expounding her Constitution and her 
statutes, and expounding, illustrating, and enriching her juris- 
])rudence ; and in the exercise of his high functions, not only 
displayed a consummate ability, but e^^altedthe judicial office by 
his integrity, firmness, and independence. We recall with 
affectionate respect the mingled dignity and courtesy of his bear- 
ing on the bench, and the simplicity, decorum, and purity of a 
private life united to such great talents and to such eminent 
public virtues. And we bear testimony to his steadfast devo- 
tion to constitutional liberty, and to the ardent, pure, and 
elevated patriotism which characterized his public and private 
career. Therefore, 

" JResolved, That we cherish a profound respect and venera- 
tion for the memory of William Lewis Sharkey, gratitude for 
his great public services, and a just pride in his well-earned 
fame ; and we tender our sj'mpathies to his family. 

" Resolved, That we wear the customary badge of mourning 
for thirty days. 

" Resolved, That the Supreme Court of this State and the 
Circuit Court of the United States be requested to order the 
foregoing to be spread upon their minutes ; that a co])y of the 
same be forwarded by the chairman of this meeting to the 



198 BENCH AND BAE OF MISSISSIPPI. 

widow of the deceased, and that the papers of this city and 

State be requested to publish them. 

" J. W. C. Watson, A. H. Handy, 

" Geo. L. PoTi'ER, D. Shelton, 

" W. P. Harris, Committee^ 

Tlie Chief Justice responded as follows : 

" The court cordially unite with the members of the bar in 
their tribute of respect to the memory of our departed friend, 
William L. Sharkey, distinguished alike for his private virtues 
and for his public services. Many of the members of this bar 
affectionately remember him as an upright man and an excel- 
lent judge, who for many years dignified the ermine of justice 
upon this bench. It is their testimony that, in the learning of 
the common law and equity jurisprudence, he had few equals 
and hardly a superior. He was even more distinguished for 
strong, practical good sense ; for firmness of will and straight- 
forward honesty of purpose. The candor and patience w^ith 
which he listened to argument found fitting counterparts in the 
impartiality and equity of his judgments, which Avill remain 
enduring monuments of his eminent ability as a jurist, and will 
ever command the confidence and respect of all who are devot- 
ed to the noble science of jurisprudence. As a testimonial of 
affection and of sorrow, the court will order the proceedings of 
the bar to be entered on the records. ' ' 



COTESWOETH P. SMITH. 

Cotesworth Pinckney Smith was a native of South Carolina, 
but removed to the Mississippi Territory prior to its cession by 
Georgia to the General Government, and resided in that portion 
which was afterwards included in Adams County and subse- 
quently erected into the county of Wilkinson. Here his boy- 
liood was passed, amid the wild scenes of the country, and in the 
enjoyment of such advantages as the state of its society afforded 
at that period ; but being endowed with great energy, natural 
talents, and more than ordinary ambition, Mr. Smith, on reach- 
ing his maturity, turned his attention to the law, which he 
practised for many years with success. 



COTESWORTH P. SMITH. 190 

In 1826 he was chosen to represent Wilkinson Countj in tlie 
lower branch of the Legislature, and as chairman of the Com- 
mittee on Internal Improvements performed an active and 
laborious part in that body. In 1830 he represented the county 
of Wilkinson in the State Senate, and so greatly had his reputa- 
tion as a lawyer increased, and his popularity as a man of energy, 
firmness, and uprightness enlarged, that in 1833 he was elected 
under the new Constitution one of the judges of the High 
Court of Errors and Appeals. His term expired in 1837, and 
in 1840 he was appointed by the Governor to fill the vacancy on 
that bench occasioned by the death of Mr. Justice Pray, but 
was succeeded during the same year by the election of Mr, Jus- 
tice Turner by the ])eople. 

Returning to the practice of law with a riper experience, and 
with his talents invigorated by the wide scope of their exercise 
upon the bench. Judge Smith stood among the most prominent 
of the Mississippi bar. But the popularity he had acquired as a 
judge of the High Court asserted itself in his being recalled to 
that bench, and on his election, in 1849, he was made Chief 
Justice of the State. 

Chief Justice Smith was naturally endowed with talents of a 
high order. He possessed an eager appetite for knowledge, and 
extended his inquiries to every department of science ; and this 
the brilliancy of his intellect permitted him to do without any 
apparent detraction from his legal ability. He was fond of mis- 
cellaneous reading, and was well versed in all the polite litera- 
ture both of the past and of his day. He was consequently an 
agreeable companion, and one of the most interesting and ac- 
complished conversationalists of his time. He was a man of 
great intellectual independence, and however well he might 
be acquainted with the opinions of others, he promptly 
subordinated every question to the dictates of his own 
views. 

He delivered the opinion of the court in the famous case of 
the State of Mississippi vs. Johnson, which fixed the liability of 
the State for the payment of the bonds of the Union Bank, and 
which he knew would place him in a hostile attitude to the 
party in control of the State Government, to a large majority 



200 BENCH AND BAE OF MISSISSIPPI. 

of the people, and would cost him his seat upon the hench and 
per])etual exclusion from office. 

In this ease Judge Smith bases his conclusions upon the 
broad and solid ground that the same principles which govern 
in matters of contract between private individuals apply to all 
contracts to which the State has become a party. This rule is 
founded on the presumption that sovereign States, who are sup- 
posed to be always ready to perform their undertakings and to 
discharge their just obligations, could desire no better rules by 
which to ascertain their own obligations and rights than those 
according to which they dispense justice to their citizens. 

He was deeply learned in all the branches of his profession, 
and seemed to comprehend its most subtle principles niore by 
intuition than by laborious investigation. But his knowledge 
of the law was not more conspicuous than other traits of his 
character, which seemed to eminently fit him for the bench. 
lie was candid, conscientious, and impartial ; firm in his opin- 
ions, fond of justice, and fearless in his denunciation of wrong. 
In this respect he very much resembled Sir Matthew Hale, 
with whom his uniformly conscientious and equitable adminis- 
tration of law entitles him very properly to be ranked. Judge 
Smith had but one aim, and that was duty ; and this purpose 
extended to all the relations of life. If the natural kindness 
and amiability of his disposition ever faltered it was because it 
conflicted with this ruling motive. 

His manners were gentle, urbane, and conciliatory, and the 
honors bestowed upon him reflect the estimation in which he 
was held by his fellow-citizens. He held the office of Chief 
Justice for nearly twelve years, with uniform ability, unflagging 
zeal, and unswerving fidelity to the principles of law and jus- 
tice. He died in 1863. 

The following proceedings are taken from the minutes of the 
High Court : 

" At a meeting of the bar of the High Court of Errors and 
Appeals, in Jackson, on February 23d, 1863, held for the purpose 
of expressing the feelings of the bar touching the death of the 
late Chief Justice, Hon. Cotesworth P. Smith, upon motion, 
Hon. William L. Sharkey was requested to act as chairman, 



COTESWORTH P. SMITH. 201 

and William S. Terger as secretary ; and upon motion, Hon. 
William S. Yerger, Thomas J. Wharton, and George L. Potter 
were appointed a committee to draft resolutions expressive of 
the sentiments of the meeting. 

" The Attorney-General, Hon. T. J. Wharton, presented the 
following report, which was unanimously adopted : 

" Since the last adjournment of this court, the State of Missis- 
sippi has mourned the loss of many valued and honored sons. 
Among the number the Attorney -General has announced to the 
court the name of the late learned and upright Chief Justice of 
the High Court of Errors and Appeals, the Hon. Cotesworth 
Pinckney Smith. Whilst we mourn with the whole people of 
the State the loss of all her honored children, we owe to the 
memory of the great and good Chief Justice more than the 
common meed of tears. Associated for years with him upon 
terms of the most intimate and kindly intercourse, watching 
him daily in the conscientious and equitable administration of 
the law, we have been enabled to form a just appreciation of 
the character of the man, and thus tu know how great the loss 
which the Bench and Bar, as well as the State, have sustained 
in his untimely decease. 

" Born in Mississippi M'hile yet under the territorial govern- 
ment of Georgia, Judge Smith grew with the growth of his 
State. Honored and trusted at all times by his felloAV-citizens, 
he never sought rewards or honors from any other source, and 
never held an office not conferred by them. Endowed by 
nature with mental faculties of the highest order, with moral 
and physical courage which knew no fear, of humane and 
kindly disposition, and actuated by a conscientious rectitude of 
purpose and principle which nothing could swerve, Chief Jus- 
tice Smith presented to the w^orld the model character of a 
judge. Learned, conscientious, fearless, and upright, for nearly 
twelve years he presided in this court ; and each and all of us can 
bear willing testimony that during all that time he administered 
justice without sale, denial, or delay ; knowing no man nor any 
party in his judicial action, but doing his duty in every ease regard- 
less of men or parties, and with an eye single to law and justice. 

" In the decease of such a judge the State mourns one of her 



202 BENCH AND BAR OF MISSISSIPPI. 

worthiest sons. In the death of such a man the world has lost 
one of its noblest ornaments. 

" As a feeble tribute to the memory of so much worth, and 
that those who come after us may know how highly we who 
knew him best appreciate it, the members of the bar of the 
High Court of Errors and Appeals 

" Resolved^ That, in common with the people of the State, 
they deplore the great loss sustained by the country in the de- 
cease of Cotesworth Pinckney Smith — a judge without fear and 
without reproach, a citizen conscientious in the discharge of 
every duty, and a man whose heart was open to every sympa- 
thy for the wants and sufferings of his fellow-man. 

" Resolved^ That in his decease the High Court has sus- 
tained an irreparable loss, which, felt by all, is more particu- 
larly felt by his associates upon the bench and by the members 
of the bar, who, daily associating with him, best knew his worth, 
and therefore most deplore his loss. 

^^ Further resolved, That we tender to his associates upon 
the bench our sympathy for the loss sustained by them in com- 
mon with us all, and that we offer to the widow and family of 
our deceased friend and brother the sincere condolence of 
friends who, knowing well the great loss they have sustained, 
are only able to feebly express their sentiments of love and 
admiration for his worth, and their sincere grief for his un- 
timely end, 

" Besol'ved, further, That a copy of this preamble and these 
resolutions be forwarded to the family of the deceased, and that 
tlie Attorney-General request that they be spread upon the 
minutes of the High Court. 

*' William L. Sharkey, 

" Chairman.'''' 



DANIEL W. WRIGHT. 203 

DANIEI^ W. WRIGHT. 

Daniel W. Wright was born in the eastern portion of tlie 
State of Tennessee, and was reared near Huntsville, Alabama, 
whither his father's family had removed. Here he prepared 
himself for the bar and began the practice of law, but in 1822-8 
he emigrated to Mississippi and settled in Monroe County, at 
a place called Hamilton. Here he rose to eminence in his 
profession, and at the first election under the Revised Constitu- 
tion, in 1833, was chosen one of the judges of the High Court 
of Errors and Appeals, for the term of six years. This office 
he held until 1838, when he resigned, and having lost his wife 
about this time he retired also from the bar, and made his resi- 
dence with his daughter, in the town of Pontotoc, where he 
died a year or two afterwards. 

Mr, Justice Wright was a man of a naturally strong mind, 
but in his latter days lacked somewhat the capacity of vigorous 
application. He never wrote an opinion during the live years 
he occupied a seat upon the high bench, which was not at all in 
conformity with his early vigorous career at the bar, and can be 
accounted for only upon the ground of an unfortunate convivi- 
ality to which he became addicted, and which impaired his 
energies. Judge Wright was undoubtedly a laM^yer of ability 
and an orator of no ordinary powers. He possessed a close and 
comprehensive discernment, was a good judge of law, and saw 
at a glance its proper apjjlication. But it was as an advocate 
before a jury that Judge Wright exhibited his greatest powers. 
This was the sphere to which his genius seemed especially 
adapted. He was full of vivacity and good-nature, fond of 
humor and anecdote, and often wrested that from the good-will 
of the jury which he could have scarcely obtained from its 
judgment. He was an exceedingly kind and generous man, 
and consequently possessed great personal popularity, which was 
no doubt the main cause of his success. 



204 BENCH AND BAE OF MISSISSIPl?!. 

P. RUTILIUS R. PRAY. 

Mr. Justice Praj was a native of the State of Maine. He 
was well educated, and on removing to Mississippi began the 
practice of law in the County of Hancock, from which he was, 
in 1828, elected to the Legislature, and was placed upon the 
Judiciary Committee of the House of Representatives with 
William L. Sharkey and John A. Quitman, and even among 
those distinguished men acquired prominence for his ability. 

He was president of the convention which adopted the Re- 
vised Constitution of 1832, and presided over that body with 
great dignity and parliamentary skill. As a lawyer Mr. Pray 
possessed qualities that enabled him to rise rapidly in his pro- 
fession, and in 1833 he was elected by the Legislature to revise 
the laws of the State, • 

Li the performance of this duty, he was required to prepare 
a Revised Code of the statutes, and report its completion to 
the Governor, who was requested to convene the Legislature for 
the purpose of its adoption. He was authorized to alter and 
amend the phraseology of existing statutes, and to prune, correct 
and arrange, alter and amend, the provisions thereof, so far as 
might be necessary to render the Code harmonious within itself, 
and consistent with the provisions of the Revised Constitution. 
This work he completed with great labor, but not in a satisfac- 
tory manner, and it was rejected by the Legislature. At the 
regular election in November, 183Y, he was chosen a judge of 
the High Court of Errors and Appeals, which office he held 
until his death, which occurred in 1839. 

It is not understood that Judge Pray possessed any pre-emi- 
nent qualities as a jurist, but he possessed qualifications that 
rendered him distinguished as a lawyer and eminent as a citizen. 



JAMES F. TROTTER. 205 

JAMES F. TROTTER. 

The subject of tliis sketch was born in Brunswick County, 
Virginia, on tlie Htli of November, 1802, but at an early age 
removed with liis fatlier's family to East Tennessee, where his 
education was obtained, mostly under the tuition of Rev. J^lr. 
Doak, a pious divine, for whom his pupil ever entertained the 
greatest reverence. He was there prepared for the practice of 
law, and having obtained his license, removed in 1823-4 to the 
County of Monroe, Mississippi, and located at Hamilton, then 
the seat of justice of that county. Here he soon became the 
competitor and rival of Daniel W. Wright, which emulation 
continued as long as both remained at the bar. 

As a lawyer the ability of Mr. Trotter was marked and well 
recognized. He was devoted to his profession, and brought to 
its study and exercise all the powers of his mind and all the 
energies of his nature. While he possessed no feature of re- 
markable brilliancy, the full round orb of his character and 
varied qualifications justly entitled him to the distinction to 
which he attained. His intellect was acute and penetrating, 
and his powers of comprehension ready and conspicuous. He 
had an easy command of language, and, while the style of his 
rhetoric was without flash or studied ornamentation, his logic 
was characterized by its weight and solidity. He was a man of 
indefatigable industry and of stern morals : almost stoical in 
his aversion to idleness and intemperance. It was said of him 
that he was always in a hurry. Yet, notwithstanding the 
assiduity of his compliance with the demands of the most jeal- 
ous of professions, which necessarily precluded him in a great 
measure from mere social intercourse, he was a man of great 
personal popularity, and was several times chosen to represent 
Monroe County in the State Senate. 

On the reorganization of the courts imder the Constitution of 
1832, Mr. Trotter was elected judge of the Circuit Court of his \, 
district, and carried to the bench the same penetrating judg- 
ment and dispatch of business which had rendered him success- 
ful at the bar. 

In 1838 Judge Trotter was elected to a seat in the Senate of 



206 BENCH AND BAR OF MISSISSIPPI. 

tlie United States, to succeed Jud^e Black, who had resigned ; 
l>ut before taking his seat he resigned also, and, it is appre- 
hended, upon the ground that the bench offered, as he con- 
ceived, a sphere more suited to his abilities and taste than the 
fickle arena of politics. 

In December, 1838, he was appointed to the bench of the 
High Court of Errors and Appeals, to fill the vacancy occasioned 
l>y the resignation of Mr. Justice Wright, and in November, 
1839, was elected by the people for the term of six years, but 
resigned in 1842. 

Mr. Justice Trotter dehvered many important decisions while 
upon the high bench, and his opinions are noted for great 
strength and dignity of style, as well as for a penetrating dis- 
crimination, a sound judgment, and a profound knowledge of 
the law. Though gentle and affable in manners, he was stern in 
pursuit of justice ; and, in integrity, courage, and firmness, his 
character is not inferior to that of Lord Chief Justice Holt, 
whom he also resembled in his manner of excluding all extrane- 
ous or collateral questions from the case under consideration, 
and carefully withholding an expression of his opinion upon 
any point not necessary to the gist and justice of the cause. 

His opinion in the case of Jane B. Ross et al. vs. Vertner et 
al. (5 Howard 305), is a striking instance of this character. In 
this case it seems to have been the effort of the learned counsel 
to i:)resent to the court as many points as the utmost tension of 
its features would admit ; but they were gracefully waived by 
the judge, and the question rehung upon its proper hinge. 
And this I conceive to be a most eminent quality in a supreme 
judge — to avoid the expression of mere dicta, which tend only 
to confuse and mislead the practitioner without authoritatively 
afiinning any principle. 

On retiring from the bench of the High Court, Mr. Justice 
Trotter removed to the town of Holly Springs and resumed the 
practice of law, but, in 1855, was elected vice-chancellor of the 
northern district of Mississippi, which position he held until the 
separate chancery system M\as abolished by the code of 1857, 
when he again returned to his practice. 



JAMES F. TEOTTER. 207 

In 1860 he was appointed professor of law in the State Uni- 
versity, and occupied that position two years. 

While Judge Trotter was apparently always adverse to an 
active participation in the mere strife of political parties, 
he was an ardent supporter of the Southern cause, and no 
one felt more deeply than he the result of the great con- 
flict ; but he comprehended the import of the arbitration 
which the sword had awarded, and sought by his example 
to reconcile liis fellow-citizens to the inexorable fiat. On 
the reorganization of tlie courts in 1806, he was appointed 
to the circuit bench, and in the first court which he held 
he presented the following preliminary remarks in his charge 
to the grand jury of De Soto County, which, on account of 
the dignity and patriotism of their sentiments and the sound- 
ness of their advice, are well worthy of a place in this narrative. 
Judge Trotter said : 

'' It is to me personally a source of great gratification to 
meet you here to-day in comj)any with the other constituent 
members of the court. It is upwards of four years, I believe, 
since a court was organized and holden in De Soto County. 
During that eventful period our State has passed a terrible 
ordeal, in the midst of which she has been enveloped in shad- 
ows, clouds, and darkness. The return of peace has enabled 
us to see the extent of the devastation which the work has 
made, and to contemplate the whole of our losses. It is a 
gloomy spectacle : wherever we go or wherever we turn our 
eyes, we witness the sad memorials of our misfortunes, melan- 
choly evidences of our sufferings, and the cruelty and savage 
ferocity of our late enemies. To-day we meet amidst the ruins 
of our country, with all the bitter memories of the past crowd- 
ing upon our minds. One consolation is the hope that we have 
reached the bottom, and are soon to float again upon the sur- 
face of jieaceful and busy life. Though stripped of our most 
valuable possessions, reduced to poverty, and some of us to ac- 
tual destitution, yet, being free to exert our energies, we will 
soon rebuild our ruined fortunes and re-establish our prosperity. 
We indulge in no unavailing regrets, no useless griefs, but, for- 



208 BENCH AND BAR OF MISSISSIPPI. 

getting the past, push forward with man] j fortitude and buoyant 
hope toward the goal of our destiny. 

" We are happy that civil law has been restored, and that peace 
and good order are about to resume their rightful dominion. 
Meeting under the sanction of our constitution and laws, we 
may, I fondly hope, again assert the rightful jurisdiction of our 
State and enforce our own municipal code. It is a source of 
heartfelt congratulation that we assert these high privileges with- 
out danger of hindrance or molestation. It is true that some 
of the acts of our Legislature, in reference to the labor and con- 
duct of onr late slaves, may not have been entirely satisfactory 
to the Federal authorities, yet I can scarcely anticipate a case 
which can bring the decisions of this court into conflict with 
any of the orders of the ' Freedmen's Bureau.' 

" Since the sad era of our surrender we have rendered a cheer- 
ful obedience to the laws and Constitution of the United States, 
and as a proof of the sincerity of our professions of allegiance, 
and in order to re-establish amicable relations with all of our 
sister States, we made a sacrifice of upwards of four millions of 
slaves, a peace-offering upon the altar of the Union ; and in ad- 
dition, we came under solemn obligations to obey the Constitu- 
tion and laws of the Union, by complying with the terms of 
amnesty held out to us by President Johnson, These engage- 
ments we design to continue and observe in good faith, as we 
have truly done in the past, 

"Having failed, as other nations have, in maintaining our 
separate existence as a free people, we laid down our arms when 
we could use them no longer, and submitted to our destinies. We 
took arms in defence of what we believed to be a righteous 
cause — the cause of self-government — and we struggled against 
overwhelming numbers for four years. It was all in vain. But 
let it be remembered that, though we lost our cause and almost 
everything else, we yet preserved our honor. Every day's dis- 
closures show more clearly the immense disparity in the military 
forces of the two belligerents, and the wonder is, not that we 
were finally beaten, but that we were able to maintain the con- 
test for so long a period. Every day adds a fresh chapter to 
the skill and conduct of our leading generals, and to the heroic 



JAMES F. TROTTER. 209 

daring and endurance of our troops. Here is ample cause for 
congratulation. We liave won true glory in our struggle for 
liberty— a struggle which has no parallel in tlie history of the 
world. 

" But I will dismiss this topic with one single reflection more. 
1 express my feehngs by the simile of Iluddlesford's oak, 
which, after braving the storms of centuries, was at last uproot- 
ed and all its branching honors laid prostrate on the ground. 

" ' Thou who, unmoved, hath heard the whirlwind chide, 
Full many a winter round this craggy bed, 
And like an earth-born giant hast outspread 
Thy hundred arms, and Heaven's own bolts defied, 
Now liest along thy native mountain's side 
Uptorn ! Yet deem not that I come to shed 
The idle drops of pity o'er thy head, 
Or basely to insult thy blasted pride. 
Nq ! still 'tis thine, though fallen, imperial oak. 
To teach a lesson to the wise and brave, ' 

Our people always loved the Union. It was associated in their 
minds with the names of Washington, Madison, and Mason, 
and Randolph, the fathers of the Constitution. In all the war.> 
which have been waged against foreign powers by the United 
States, the Southern people have been conspicuous for their zeal 
and gallantry in maintaining the honor and interest of the Fed- 
eral arms. Let our sister States but do us simple justice by ac- 
cording to us the rights that belong to us under the Constitutiont 
and they will find us as ready to shed our blood in the defence 
of the Union, as we showed ourselves to be in the war of ISli^ 
or that of 1846. 

"We have now every motive to be true and loyal to the Fed- 
eral Constitution and laws. We have given our word and pledg- 
ed our solemn vows, and if permitted, we will redeem them to 
the satisfaction of the world. I feel assured, indeed I know, 
that the people of the South desire most earnestly to live in 
peace under the Union, and enjoy its blessings and protection. 
And I will not doubt that, in time, the j)eople of the United 
States will see that we enjoy the protection which our allegian(je 
14 



210 BENCH AND BAR OF MISSISSIPPI. 

♦ 
challenges and demands. For allegiance and protection are 

and must be reciprocal. ' ' 

These were noble and patriotic words, and at the time of 
their utterance Judge Trotter little recked of the sorrows yet in 
store for his people, and but httle comprehended the vengeful 
spirit uliich was even then poising its arrows at the South. He 
maintained his position on the circuit bench until the time of 
his death, which occurred in Holly Springs, March 9th, 1866. 

The bar of Holly Springs paid a touching tribute to his mem- 
ory, and in response to its presentation for record upon the min- 
utes of the court, Judge Cay ton, having granted the request, 
said : 

" It may not be out of place for me to add a few words of 
testimony to the merits of the deceased as a man and his worth 
as a judge. It has been my fortune somewhat to tread in his 
footsteps, in his judicial career. When he resigned his place as 
a member of the High Court in 1842 I was elected his successor. 
He had left behind him on the bench a reputation which any 
man might be content to equal. I never heard any one utter a 
word against his uprightness and purity as a judge or his truth- 
fulness as a man. He seemed to have made the divine in- 
junction, ' Thou shalt do no imrighteousness in judgment,' his 
motto and his model, and he lived up to it in his fullest sense. 
His knowledge of his profession was varied and profound, and 
his opinions rarely failed to carry conviction with them. 

" His taste, as well perhaps as his talent, suited the quiet repose 
of the bench better than the strifes and the contests of forensic 
efforts. Hence he spent the greater part of his professional 
life clothed in the ermine of justice ; and well did its folds be- 
come him. It received no spot or stain by act of his, and was 
laid aside as pure and white as the mantle that wrapped his 
form in the grave. 

" Nearly twenty-five years have since passed — years filled with 
eventful changes and revolutions in private as well as public life, 
and I stand here to-day, again his successor in judicial station. 
And I may well be content to earn the same meed of approba- 
tion which has just been stamped upon his course by those most 
competent to pass upon it. 



ii 



JOSEPH S. B. TIIACriER. 211 

" The poet who had the boldness to assemble the whole human 
race before the throne of the Omnipotent and the Eternal for 
judgment, placed in the same category of guilt and of pun- 
ishment 

" ' The judge who takes a bribe 

And the advocate who pleads his cause amiss.' 

" Of a certainty we may pronounce our brother free from ail 
danger of this destiny ; and may we all strive, each in liis 
place, to be equally exempt from such a doom when our final 
sentence is passed." 



JOSEPH S. B. THACHER. 

Joseph S. B. Thacher was a native of Massachusetts, and was 
reared and educated in the city of Boston, where his father held 
an important judicial office. He was a descendant of Oxen- 
bridge Thacher, who was employed, in connection with Jaines 
Otis, by the merchants of Boston, in ITGl, to defend them 
against the Writs of Assistance^ and w^hom, John Adams says, 
the advocates of the crown hated more than they did Otis or 
Samuel Adams. After having engaged in the practice of hivv 
for a short time in his native citj^, he removed to Mississippi, 
in search of those richer fields, which the fame of Prentiss, 
Walker, and other natives of the North, had clothed with 
dazzling inducements. Mr. Thacher settled in Natchez about 
the year 1833, where he enjoyed a thrifty practice, and in 
1837 was elected to succeed John I. Guion as judge of tlio 
criminal court established by the Legislature in the counties 
of "Warren, Claiborne, Jefferson, Adams, and Wilkinson. Tliis 
office he held until 1840, when the Legislature abolished the 
" criminal court." 

■ In 1843, after a spirited political canvass, entirely incompati- 
ble with the nature and dignity of the office, Judge Thacher 
was elected one of the judges of the High Court of Errors and 
Appeals for the term of six years. During his candidacy for 
this office charircs of a serious nature were circulated, connect- 
ing him with some dishonorable transaction in the eity of l^csj- 



212 BENCH AND BAE OF MISSISSIPPI. 

ton prior to Lis emigration to Mississippi. These, after a se- 
ries of criminations, recriminations, and a lengthy vindicatory 
correspondence, were finally cleared away. 

At tlie expiration of his term, in 1849, Mr. Justice Thacher 
wa."* a candidate for re-election, and during the canvass was 
charged with having procured, during his candidacy in 1843, the 
puhlication of articles highly disparaging to the character of his 
opponent, and savoring of a detestable egotism. 

These articles appeared in an " Extra" of the Gallatin Signal, 
and were secretly circulated a few days preceding the election, 
over the signature of the editor, who, during the canvass of 
1849, upon application being made to him in regard to the mat- 
ter by the gentlemen of the bar and others of Natchez, swore 
to the procuration of Judge Thacher, and disclosed his letter 
arranging the terras and suggesting a schedule for the circula- 
tion of the articles. 

This unfortunate disclosure conduced, no doubt, largely to 
the defeat of Judge Thacher ; for, being a Democrat, he was on 
the popular side of politics, while his opponent, Hon. Cotes- 
worth P. Smith, besides being a Whig, was liable to the, at that 
day, further objection of being an avowed advocate of the lia- 
bility of the State for the payment of the bonds of the Union 
Bank. But it must be remembered also that Mr. Justice Smith 
had already served one term upon the high bench, and the mani- 
fest disparity in the ability of the two judges was decidedly in 
favor of the latter. 

It cannot be claimed for Mr. Justice Thacher that he was a 
lawyer of comparatively much depth of professional learning. 
II is talents were more of the literary order than professional, 
lie was a strenuous advocate of the cause of education, was 
much devoted to science and the fine arts, and wrote literary 
essays of considerable merit. 

His election to the high bench, in 1843, was due, no doubt, 
more to his position upon the bond question than to any recog- 
nized ability, or special qualification for the office, thus evinc- 
ing the folly and absurdity of resting judicial promotions upon 
mere questions of politics and the prejudices of parties. 

The career of Judge Thacher upon the bench was character- 



JOSEPH S. B. TIIACIIER. 213 

i/ed by uprightness, iiupcirtialitj, and integrity. His decisions 
manifest a laborions effort to reach the utmost hmits of justice. 
Pie was a close abider of precedent, and lield fast to every con- 
stitutional feature. He was a man of pure morals, and in social 
life shone with a brilliancy which only the highest order of ac- 
complishments could kindle. 



CHAPTER VII. 



THE BAR— EMINENT LAWYERS— 1832-1850. 

SERGEANT S. PRENTISS JOHN I. GUION JOSEPH HOLT VOLNEY E. 

HOWARD ANDERSON HUTCHINSON DANIEL MAYES WILLIAM E. 

ANDERSON. 

We have now arrived at a period the most brilliant in the 
history of the Mississippi bar ; when its shining lights flashed 
an effulgence that attracted the gaze of admiration in all parts 
of the country ; when it glittered with a galaxy of genius for 
which the scroll of oblivion has no place. It was daring this 
period that the flush tide of speculation rolled its sparkling bub- 
bles over the State, alluring thousands within its seductive but 
ruinous vortex ; when banks of unlimited and baseless issues 
sowed, with lavish hand, the seeds of financial ruin, which 
finally fruited into one common and overwhelming crash. 

It was now that the best legal talents were called for and 
aroused — a genius that could baffle and expose the artifice of 
cunning, an integrity that could thwart the designs of villainy, 
attd a love of justice that could rescue the innocent and unfor- 
tunate from the clutches of avarice. All these demands were 
fully met, and the bar of Mississippi during that period takes 
rank with any that graces the annals of the forum. Let us take 
note of some of these, and first of 



216 BENCH AND BAR OF MISSISSIPPI. 

SEEGEANT S. PRENTISS. 

A few years prior to the period referred to, a pale and slender 
young man made his appearance in the town of Natchez. He 
was an entire stranger, and on his arrival had, it is said, but five 
dollars in his pocket, which he soon expended in endeavoring to 
secure the good wishes of his landlord and other inmates of the 
hotel. He did not think, as he afterward said to a friend, that 
his capital M^as sufficiently ample for investment in trade or 
speculation, and conceived that the best use he could make of 
it was to purchase, if possible, the kindness of his host. In this 
he succeeded, and obtained credit for his board until he could 
procure a situation as teacher. This purpose he soon achieved, 
and entered upon his duties as tutor to the children of Mrs. 
Shields, a widow lady residing in Natchez. This position he 
held about two years, and during that time devoted all his 
spare hours assiduously to the study of the law. 

As a mere private tutor and a friendless and penniless stranger, 
he had but poor social advantages among the aristocratic circles of 
Natchez, and consequently his life was monotonous and retired. 
At the end of the second year of his experience as teacher he 
abandoned his tutorship, entered thelawofiice of the distinguish- 
ed Kobert J.Walker, and, having soon acquired license to practise 
law, he immediately entered upon his profession. And now, 
with no friend but his resolution, and no fortune but his talents, 
he leaped into the forum, an armed knight, amid an almost un- 
paralleled array of legal learning and forensic ability. The first 
sound of his voice in the halls of justice drowned every whisper 
of supercilious conjecture, and drew upon him the gaze of won- 
der and admiration from bench, bar, and box. 

There he stood, the commissioned champion of destiny, the 
plumed hero of victory, the personification of knowledge with- 
out recognition, of eloquence without plaudit, of fame without 
a trumpet : an unheralded victor, he seized the reins of genius 
and dashed away to fields unfurrowed and unfought. 

Sergeant Smith Prentiss was born in the State of Maine, and 
in the city of Portland, on the 30th of September, 1808. 

The paternal branch of his family was of English descent. 



SERGEANT S. PRENTISS. 217 

while that of his mother, whose muiden name was Mary Lewis, 
was of Welsh origin. This, he said, was the Avhole anionnt of 
his genealogical knowledge. It was thought, however, that his 
American ancestors came over among the Pilgrims ; and liis 
father, William Prentiss, was a strict adherent to the stern doc- 
trines and rigid principles of the Puritan creed. 

Mr. Prentiss had two sisters, who alternately resided with 
him in Mississippi, and several brothers, one of whom he edu- 
cated for the ministry at a German university. His nohle and 
affectionate letters to these and to his mother constitute a diary 
of filial and fraternal devotion rarely equalled in the pages of 
memoir. He had lost his father when quite young, and in con- 
sequence of a severe fever had become, at an early age, an incur- 
able cripple. This circumstance created that solicitude on the 
part of his mother which, notwithstanding her slender means, 
resulted in affording him advantages which she was unable to 
bestow upon her other sons. 

After the usual academical preparation, Mr. Prentiss was sent 
to Bowdoin College, which he entered at the age of fifteen, 
and graduated with distinction at the end of the usual 
term. 

Thrown now entirely upon his own resources, yet undaunted 
by the frowns of circumstances, the young man detennined to 
seek his fortune in the far West, and at the age of nineteen bade 
adieu to his widowed mother, his friends, and the scenes of his 
childhood, and turned his face toward the Ohio. Arriving in 
the flourishing city of Cincinnati, he determined to seek em- 
ployment and a home there. In this he did not succeed ; and 
it was now that the finger of destiny touclied him and pointed 
him to those sunny fields which were to afford a tit harvest for 
his genius, and turning his stejjs toward the great Father of 
Waters, he landed in Natchez in 1827. 

Here, after the experience already mentioned, he formed, in 
1829, a copartnership witli General Felix Huston, then a dis- 
tinguished lawyer, and afterwards famous for his part in the 
Texan War of Independence. 

In 1832 Mr. Prentiss removed to Vicksburg and entered into 
a law firm with John I. Guion, a gentleman of the highest 



218 BENCH AND BAR OF MISSISSIPPI. 

social and professional rank, and who had been the partner of 
William L. Sharkey until the latter was raised to the bench. 

This firm, it is needless to say, became one of the most cele- 
brated in the Union, and was continued until the year 1836, 
when Mr. Guion was made judge of tlie criminal court. 

In gazing back upon the career of this remarkable man, it re- 
sembles the glare of some brilliant meteor that suddenly flashed 
along the horizon, and flamed toward the zenith with increasing 
glory, until, gathered into the bosom of the great orb of day, it 
forms a part of the light of the universe. 

In attempting to depict the legal character of Mr. Prentiss 
it will be difiicult to find words or images to represent the va- 
ried features and manifestations of his. genius. The secrets of his 
great success, the qualities upon which it hinged, though mani- 
fold, were yet so closely allied and intimately blended that re- 
spectively they formed but ripples upon the surface of a con- 
tinued stream. He possessed in an eminent degree those pow- 
ers of analysis which could enter into the very gist and heart of 
a proposition and wind it off upon a thousand spindles, and a 
masterly synthesis that could then gather up such threads as 
suited his purpose, and weave them back into one compact and 
unbroken cable. He could twist his subject into every conceiv- 
able attitude, and lead his audience to every possible point of 
observation : from peak to peak, from summit to summit he 
would carry it to the lofty Pisgahs of his own views, where, as- 
tounded, it would gaze with giddy conception upon prosjjects 
which the mind could reach only when buoyed by the wings 
of liis gorgeous imagery. Subsidiary to this was his classical 
fancy and wonderful scope of imagination. His powers of 
comparison seemed to be almost illimitable. There was noth- 
ing in language that did not afford him a metaphor ; nothing 
in histoi-y or romance that did not furnish him an allegory ; 
and naught in nature that was not subservient to his image- 
ry, and that did not lend poAver to his illustrations. 

The vastness of the universe and the firmament of heaven 
imparted their sublimity to his mind. The blushing flower, the 
glowing iris, and the spangled canopy of night, shed their beau- 
ties upon his soul. The gnarled trunk, the dwarfed shrub, the 



SERGEANT S. PRENTISS. 219 

ereepino; vine, and tlieir connterpai-ts in the moral world, in- 
spired his wit and ridicule, while his Imnior was fed hy all the 
incongruities of humanity. 

Such were his intellectual features, which constantly asserted 
themselves, whether he stood before a jury of the hackwoods 
or before the bar of the High Court ; on the flower-decked ros- 
trum, surrounded by thousands of eager listeners, or in the halls 
of Congress, the same halo of genius clustered around his brow. 
Calm and self-possessed, he was never at a loss for either sub- 
ject-matter or a happy manner of expression. 

As an orator, Mr. Prentiss had few STiperiors. He possessed 
in an eminent degree that active emotional energy which De- 
mosthenes characterized as the chief ingredient of eloquence— a 
capacity for deep and manifest conviction, the power of feeling 
and of making others feel, a just appreciation of the princi])le 
embodied in the adage, " >&' vis me Jlere, primum dolendtim 
est tihi. ' ' 

There was no subject which he could not clothe with interest. 
He would gather up the dry leaves of some hackneyed jioliti- 
cal theme, and so adorn and irradiate them with his eloquence 
that they would fall like corollas of roses upon his enchanted 
audience. He possessed the "imperial voice" of Mirabeau ; 
and, as Collard said of Berryer, with him oratory was not 
merely a talent, it was a power. I He was more than an 
orator : he was the living personification of human speech in 
its splendor and in its majesty. In him all was eloquent — the 
tone, gesture, attitude, and look, as well as the inspiration. 
Yet underneath all this glitter flowed the deep, strong current 
of knowledge. His eloquence never assumed the character 
of mere superficiality, but was the sparkling ebullition of the 
caldron of thought that seethed beneath, the aroma of the flow- 
ers of his mind. While he possessed an almost inimitable com- 
mand of language, it was not the mere result of memory, but 
his words were the natural and well-fitting garments of his 
thoughts. His memory was one vast storehouse of facts, so 
orderly arranged, so stratified and laminated, that he could at 
any time pluck whatever he desired from its copious vaults. 
Law was there, with its ten thousand precedents, to answer to his 



220 BENCH AND BAE OF MISSISSIPPL 

call. History held up to his glance its musty tomes and vol- 
umes vast. Poetry was there, with her sparkling gems, and 
smiled upon his nod ; and there Science spread her mysteries to 
his o-aze. He had but to will, and all presented their sparkling 
goblets to his lips. 

In the spring of 1837, he represented Warren County in the 
Legislature, and as a member of the House of Representatives 
was vehement in his opposition to the admission of the members 
from the new counties created oat of the Chickasaw and Choc- 
taw cessions, during which he procured a protest severely cen- 
suring the conduct of the Speaker, and in which he was joined 
by several other members, to be spread upon the journal of the 
House ; and when that body declared the legality of the admis- 
sion of the new members, he tendered a violent protest against 
the whole proceeding and retired from the House. 

As a politician the biography of Mr. Prentiss forms a part 
of the history of the Union. In the fall of 1837, after a mem- 
orable canvass, he and Mr. Word were elected, as the Whig 
candidates for Congress, over the Democratic candidates. Gen- 
eral Samuel Gholson and Col. J. H. F. Claiborne. These gentle- 
men, however, had been chosen at a special election, held in 
July of that year under writs issued by Governor Lynch, to ob- 
viate a vacancy that would have existed in the Mississippi rep- 
resentation at a called session of Congress convoked during that 
sunnner, in consequence of the expiration of the term of the 
preceding delegation ; and notwithstanding the election of Mr. 
Prentiss and his Whig colleague, Mr. Word, at the regular 
election held in November following, it was contended that the 
special election of Messrs. Gholson and Claiborne conferred 
upon them the tenure of the entire term. This was the subject 
of a fierce contest, and it was on this occasion that Mr. Prentiss 
made his celebrated speech in the House of Representatives on 
the " Mississippi contested election," and which he closed with 
the following beautiful and often-quoted peroration : 

" You sit here, twenty-five sovereign States, in judgment 
upon the most sacred right of a sister State — her right to repre- 
sentation : that which is to a State what chastity is to a woman 
or honor to a man. Should you decide against her, you tear 



SERGEANT S. PRENTISS. 221 

from lier brow the richest jewel that sparkles there, and bow 
her head in shame and dishonor. But if your determination is 
taken, if the blow must fall, if the violated Constitution must 
bleed, I liave Imt one request to make. When you decide that 
she shall not herself choose her own representatives, then l)h)t 
from the spangled banner of the Union the star that glitters to 
the name of Mississippi, but let the striiDe remain as a fit em- 
blem of her degradation !" 

The tw^o parties and the friends of the contestants in the 
House of Representatives were equally divided, but tlie casting 
vote of Mr. Polk, who was then Speaker, caused Mr. Prentiss 
and his colleague to be rejected, and the whole question was re- 
ferred back to the people of Mississippi. 

At the ensuing election in 1838 Mr. Prentiss was re-elected, 
and took his seat in the House of Representatives. It must be 
confessed that his career in Congress, though brilliant, was not 
so glorious as wa« anticipated. His convivial disposition and 
the temptations of the capital no doubt impaired to some ex- 
tent his capabilities. Tlie few speeches that he made, however, 
in the House of Representatives, as that, for instance, on '' de- 
falcations," and that on the navy, though bitter and sarcastic, 
sparkle with beautiful images and startling comparisons ; but 
none of his speeches in Congress can compare with many that 
he made on the stump and at the bar. 

His celebrated S2:)eech on the AVilkinson trial at Harrodsburg, 
Kentucky, in 1839, was a masterpiece of forensic eloquence. 
The history of this case is given by Mr. Thorp in the American 
Beview, September, 1851, and in substance is as follows : 
Judge E. C. Wilkinson, a distinguished gentleman of Missis- 
sippi, was engaged to be married to an accomplished young lady 
of Louisville, Kentucky, and during the month of December, 
1838, accompanied by her brother and a young friend, he pro- 
ceeded to that city for tlie purpose of consummating the hal- 
lowed bands, and on their arrival there one of the party ordered 
a suit of clothes from a well-known tailor of the place, and 
which, when called for, proved to be unsatisfactory. Upon this 
a contest arose in the shop, which resulted in the tailor's being 
struck by one of the party. The three gentlemen, ashamed of 



222 BENCH AND BAR OF MISSISSIPPI. 

the rencounter, immediately returned to their rooms at the Gait 
House ; but the tailor, breathing vengeance against his assail- 
ants, went into the streets, and by exaggerated statements of 
the affair enlisted many of his friends in his scheme of revenge, 
and accompanied by these he proceeded to the Gait House, under 
pretext of procuring the names of the three gentlemen for the 
purpose of causing their arrest. Here they tarried around the 
office of the hotel until the Mississippians came down to supper, 
when the latter were immediately assaulted by the friends of 
the tailor, which resulted in one of the most terrible tragedies. 
The Mississippians were severely wounded, and two of their 
assailants were instantly killed. Judge Wilkinson and his com- 
panions were arrested and committed for trial ; but the Legis- 
hiture of Kentucky, which was then in session, granted a 
change of venue, and the trial was removed to Harrodsburg. 
Here Mr. Prentiss was summoned to the defence, and here he 
made the great speech which gathered all Kentucky into the 
fold of his admirers. 

He began by explaining the change of venue — the prejudice 
among the populace of Louisville^ — that his clients had come to 
Harrodsburg for justice — had fled thither for protection, " even 
as to the horns of the altar." He then paid a glowing tribute 
to the dignity and learning of the presiding judge, to the im- 
partiality of the jury, and to the honor and gallantry of Ken- 
tuckians generally. After which he proceeded to state the 
grounds of defence. This was simple : 1st. A conspiracy td 
inflict personal violence. 2d. Reasonable apprehension. Tlie 
law applicable to these two propositions he stated in a manner 
equally simple. It was, as he said, "a mere transcript from 
the law of nature." This done, he proceeded to dissect the 
evidence : strand by strand he pulled to pieces the tangled 
hank, and held up every thread to the gaze and inspection of 
the jury, and then, rejecting the rotten and the false, he twisted 
an irrefragable cable with which he bound the conspiracy to the 
miinds of the jury. Then turning to the circumstances of the 
parties, and to the impossibility of the quarrel's being sought by 
Judge Wilkinson, he said : " With buoyant feelings and pulse- 
quickening anticipations, he had come more than a thousand 



1 



SERGEANT S. PRENTISS. 223 

miles upon a pilgrimage to the shrine of beauty, and not of 
blood ; upon an errand of love, and not of strife. lie came to 
transplant one of Kentucky's fairest flowers to the wan n gar- 
dens of the sunny South. The marriage -feast was spread, the 
bridal wreath was woven, and many bounding hearts and spark- 
ling eyes chided the lagging hours. The tb?5ughts of the bride- 
groom dwelt not upon the ignoble controversy which for an 
unguarded moment had occupied his attention, but upon the 
bright and glorious future, whose rapturous visions were about 
to become enchanting realities. 

Under such circumstances Judge Wilkinson could not have 
desired the conflict. Had the fires of hell blazed in his bosom, 
they must have been quenched for a while. The very fiend of 
discord would have been ashamed, fresh from a voluntary, vul- 
gar, bloody qparrel, and reeking with its unsightly memorials, 
to have sought the gay wedding banquet." It is needless to 
say that Judge Wilkinson and his companions were acquitted. 

But if the eloquence of Mr. Prentiss was irresistible when 
employed in the defence of the innocent, which was his especial 
delight, the power of his withering invective was no less fatal 
in the prosecution of the guilty. His speeches in the trial of 
Mercer Bird and Alonzo Phelps are said to have been the most 
powerful ever made before a jury in Mississippi. 

Bird was convicted in the face of strong doubts as to his 
guilt, but his subsequent confession confirmed the opinion of 
Mr. Prentiss, and proved his penetrating scrutiny. He be- 
lieved him guilty, and brought to bear upon the case that tran- 
scendent eloquence which never failed to resolve the sternest 
doubt into conscientious conviction. 

Alonzo Phelps was a native of New England, but as a vaga- 
bond, a robber, and a murderer, had long infested the Missis- 
fiippi. It was said that he had murdered no less than eight 
persons, committed robbery upon robbery with impunity, 
and had always succeeded in making his escape, until finally he 
murdered a man in the vicinity of Vicksburg, for which he was 
arrested and placed upon his trial. His prosecution was the occa- 
sion of one of Mr. Prentiss'&most powerful efforts. It was then 
that indignation and contempt added fury to his eloquence, and 



224 BENCH AND BAR OF MISSISSIPPI. 

turnino- upon tlie prisoner, whom lie characterized as the " Rob 
Roy of the Mississipi3i," he depicted, in the most terrible colors 
of the imagination, the merited punishment of his crimes, 
which was beyond the power of any liuman tribunal to inflict, 
and which nothing but the fires of hell kindled to full blast 
around his head could expiate. Under this scathing denuncia- 
tion the prisoner grew desperate, his muscles twitched with con- 
vulsive rage, his eyes glared with raving fury, and he afterward, 
while in prison, told Mr. Prentiss that during his speech he was 
several times on the eve of seizing one of the guns of the guard, 
which were stacked around the bar, and shooting him down. 
Mr. Prentiss replied that he saw his motive, was watching him, 
and was prepared for him. Phelps was of course convicted 
and sentenced to death, but was killed in attempting to again 
make his escape. 

While he poured the vials of bitter vituperation upon the 
head of guilt, he never failed to draw an inspiration of the sen- 
timental from every romantic feature and tender circumstance 
of his cases. The following is a striking instance of the exer- 
cise of this quality : . 

A young gentleman of Virginia, who possessed considerable 
property, had loved a young lady there who rejected his suit 
and married another, upon which he removed to Mississippi 
and destroyed himself by dissipation, but in his will bequeathed 
his entire property to this lady, who had then become a widow. 
She accepted the bequest, but the heirs of the young man en- 
deavored to dispossess her of the legacy, upon the grounds that 
the young man was non compos mentis at the time of the devise, 
and brought an action to test the question " devisavlt vel non.'''' 
Mr. Prentiss was employed in the defence, and during the trial 
invoked his conceptions of the beautiful and his powers of elo- 
quence to add new charms to the circumstances. He said : 
''At the approach of death the mind will often cast off the 
clouds by which it has been long obscured, and the heart, how- 
ever perverted by intemperance, will suddenly recover its former 
purity. So, doubtless, in the last moments of the life of this 
unhappy man» a remembrance of his early love shone across the 
dreary lapse of his after years, and the image of that first-loved 



SERGEANT S. PRENTISS. 225 

and never-forgotten one, rising above all intermediate objects, 
recalled the fond hopes of his youth : and under these vivid in- 
fluences he strove to redeem the errors of his life by an act of 
noble generosity. Tlius dying, 

" ' . . . like the dolphin, whom each pang imbues 

With a new color, as it gasps away, 

The last still loveliest, till — 'tis gone — and all is gray.' " 

The lady was permitted to retain her legacy, the frait of 
unrequited love. 

Mr. Prentiss possessed a wonderful degree of self-possession. 
He was once defending an action of ejectment in the Circuit 
Court of Washington County, and there happened to be upon 
the jur}^ an old hunter from the swamps of Deer Creek, named 
Belcher. The plaintiff's counsel had exhibited his title, and 
closed his argument with such a stirring peroration that " Old 
Belcher," as he was called, could not refrain from venting his 
conviction, and exclaimed from the box, " Thafs a good 
title j I go for the plaintiff.'''' Mr. Prentiss arose, and with a 
pleasing smile said, " Wait a minute. Belcher ; wait till you 
have heard my side." "Well," said Belcher, throwing him- 
self back, '•'■ Pll waity Mr. Prentiss then disclosed his case, 
and closed with one of his characteristic appeals. He saw its 
effect, and turning to Belcher, asked, " What do you think of 
that. Belcher?" '■''Thafs a good title too,'''' said Belcher. 
" ni go with the majority.'' ' 

His arguments of mere questions of law were clear, perspicu- 
ous, and compact ; his effort was to whittle every question down 
to a point — to disrobe it of all technicalities, and exhibit the 
naked principle ; and when this was done he would proceed in 
a logical manner to develop its application. His arguments in 
the case of Yick et al. vs. the Mayor and Aldermen of Vicks- 
burg, 1 How. 381 ; the Planters' Bank vs. Snodgrass et al., 4 
How. 573 ; and Ross et al. vs. Vertner et al., 5 How. 305, are 
striking manifestations of this quality. 

In the last-named case Mr. Prentiss entered into an elaborate 
exposition of the nature of residuary trusts, and of the powers 
of corporations to execute trusts, and showed that a court 
15 



226 BENCH AND BAK OF MISSISSIPPI. 

of equity would never permit a trust to fail for want of a 
trustee. These questions arose u23on the contest of the last will 
and testament of Isaac Boss, of Jefferson County, who had de- 
\ ised that his negro slaves, if they so desired, should be trans- 
])orted to the coast of Africa, for which purpose an appropria- 
tion was made from the residue of his estate, in trust to tlie 
.Vmerican Colonization Society. 

In 1839 Mr. Prentiss, at the request of the leading Wliigs of 
Mississippi, became a candidate for the United States Senate, 
and entered upon a vigorous canvass for that office. But what- 
ever may have been his chances of popularity with the people, 
had the election rested upon the popular vote, he was defeated 
before the Legislature. But he was not yet to retire from the 
political world. An event was now approaching which absorbed 
every other consideration, and engaged all the powers and ener- 
gies of his nature — the Presidential election of 1840. Mr. Pren- 
tiss leaped into the canvass, and almost every city from New 
Orleans to Portland thundered with the applause of his elo- 
quence. 

It was during tliis canvass that he addressed for the first time 
th6 people of his native city. There, on the common where 
thirteen years before he had gambolled, a wayward and friendless 
youth, he now saw the rushing tread of thousands eager to do 
him honor and catch his words. His mother was present, and 
the old lady's heart must have swollen with pride as she caught 
the eloquent strains that gushed in living streams from his lips 
and rolled away amid gorgeous imagery, bearing upon their 
surface the minds and the hearts of the audience, until notliing 
seemed left to the people but the power to admire and applaud. 
But it is foreign to the features of this work to follow him 
farther in his political career. It belongs to the history of the 
country. 

In the spring of 1842, Mr. Prentiss was married to Mary Jane 
Williams, daughter of James C. Williams, of Natchez. From 
this time it seems to have been his desire to eschew politics 
altogether, and devote himself entirely to his profession. He 
was a kind and devoted husband, and his private affairs seem 
now for the first time to have occasioned him any particular 



SEKGEANT S. PRENTISS. 227 

solicitude. His expensive political canvasses had absorbed a 
large portion of his means, while his disappointments and tlie 
treachery of political friends had created a feeling; of disgust for 
the world, which he had never before experienced. The only 
question in the politics of the State that seemed to interest him 
after this was that of repudiation : this he denounced at all times 
and under all circumstances as a monstruvi, horrendum, in- 
form^ ingens, a kind of moral and political malady wliich 
should be eradicated at all events. Such was the tenor of all 
his speeches of that period. 

In 1845 his financial embarrassments had become so great 
that he determined to remove to New Orleans, where brighter 
prospects awaited the practice of his profession. This step was 
occasioned in part by a decision of the Supreme Court of the 
United States, which deprived him of his interest in the Vicks- 
burg *' Commons," on which he had erected costly buildings 
and expended large sums of money. He now cut himself loose 
from all parties and all politics, and, having formed a copartner- 
ship m JSiew Orleans with Mr. Soale, devoted his time exclu- 
sively to his practice, and to the acquisition of a mastery of the 
civil law. And while it may be that Mr. Prentiss acquired no 
additional fame in Louisiana, yet the very fact that he was able, 
under the circumstances, to cope with the most eminent mem- 
bers of that bar, marked the transcendency of his genius. To 
men of ordinary talents it would have been a reckless and 
hazardous undertaking to step from the forum of a common - 
law State into the arena of civil-law jurisprudence, with the ex- 
pectation that a knowledge of the one would unlock the intri- 
cate system of the other. A proficient in Blackstone could not 
in consequence be an adept in Justinian. Yet the success of 
Mr. Prentiss before the Louisiana courts shows that he had also 
mastered the principles of the civil law ; how, and by what ex- 
traordinary method, his splendid genius could alone explain. 

Among the last public speeches made by Mr. Prentiss was liis 
address to the returned volunteers of the Mexican War, at a 
pubhc reception given them on their arrival at New Orleans, in 
June, 1847. Although he had opposed the war, on account of 
what he conceived would be the fruits that would grow out of 



228 BENCH AND BAR OF MISSISSIPPI. 

it, yet this was just such an occasion as called forth his best 
efforts. Glorious was his theme, and gloriously did his eloquence 
acquit itself. His speech sparkled with sentiment, glowed with 
patriotism, and blazed with an eloquence that sent a thrill to 
the heart of every soldier, and stirred the mingled depths of 
pride, and joy, and sorrow, in the bosom of the vast audience. 
His tribute to the memory of the dead, his comjDliments to the 
gallantry of the living, and the welcome which he described as 
awaiting them at their homes, where every hill would blaze with 
bonfires, and every valley ring with shouts of praise and joy, 
were truly sublime. 

' ' Welcome, ' ' said he, ' ' citizen soldiers, soldier citizens. Your 
neighbors will regard you with respect and affection. Your chil- 
dren will feel proud whenever they hear the names of Monterey 
and Buena Yista, and a grateful nation has already inscribed 
your names upon its annals. Indeed it is a noble sight, worthy 
of the genius of this great Republic, to behold, at the call of 
the country, whole armies leap forth in battle array, and then 
when their services are no longer needed, fall quietly back and 
commingle again with the communities from whence they came. 
Thus the dark thunder-cloud, at nature's summons, marshals its 
black battalions and lowers in the horizon ; but at length, its 
lightnings spent, its dread artillery silenced, its mission finished, 
disbanding its frowning ranks, it melts away into the blue 
ether, and next morning you will find it glittering in the dew- 
drops among the flowers, or assisting, with its kindly moisture, 
the young and tender plants. 

" Gallant gentlemen, you will soon leave us for your respec- 
tive homes. Everywhere fond and grateful hearts await you. 
You will have to run the gauntlet of friendship and affection. 
The bonfires are already kindling upon the hills. In every 
grove and pleasant arbor the feast is spread. Thousands of 
sparkling eyes are watching eagerly for your return. Tears will 
fill them when they seek in vain among your thinned ranks for 
many a loved and familiar face ; but through those tears will 
shine the sr\iiles of joy and welcome, even as the rays of the 
morning sun glitter through the dew-drops which the sad night 
hath wept." 



SERGEANT S. PRENTISS. 229 

A few months prior to tin's he had made his great speech in 
New Orleans in behalf of the starving Irish in the famine of 
1847. The occasion was a meeting of the citizens for the pur- 
pose of sending relief to the sufferers, and over which the Gov- 
ernor of the State presided. The assemblage was first addressed 
by Mr. Clay, who was then on his visit to the South-M^est. He 
was followed by Mr. Prentiss in a most eloquent, pathetic, and 
soul-stirring speech, of which the following passages will con- 
vey but a dim idea : 

" The Old World stretches out her arms to the New. The 
starving parent supplicates the young and vigorous child for 
bread. There lies upon the other side of the wide Atlantic a 
beautiful island, famous in story and in song. Its area is not so 
great as the State of Louisiana, while its population is almost 
half that of the Union. It has given to the world more than 
its share of genius and of greatness. It has been prolific in 
statesmen, warriors, and poets. Its brave and generous sons 
have fought successfully all battles but their own. In wit and 
humor it has no equal ; while its harp, like its history, moves to 
tears by its sweet and melancholy pathos. Into this fair region 
God has seen fit to send the most terrible of all those fearful 
ministers who fulfil His inscrutable decrees. Tlie earth has 
failed to yield her increase. The common mother has forgotten 
her offspring, and her breast no longer affords them their 
accustomed nourishment. Famine, gaunt and ghastly famine, 
has seized a nation wnth its strangling grasp, and unhappy 
Ireland, in the sad woes of the present, forgets, for a moment, 
the gloomy history of the past. We have assembled, fellow- 
citizens, to express our sincere sympathy for the sufferings of 
our brethren, and to unite in efforts for their alleviation. This 
is one of those cases in which we may without impiety assuine, 
as it wei'e, the functions of Providence. Who knows but what 
one of the very objects of this great calamity is to test the 
benevolence and worthiness of us upon whom unlimited abun- 
dance has been showered. In the name, then, of common 
humanity, I invoke your aid in behalf of starving Ireland. He 
who is able and will not give for such a sacred purpose, is not 
a man, and has no right to wear the form. He should be sent 



230 BENCH AND BAE OF MISSISSIPPI. 

hack to nature's mint, and reissued as a counterfeit on liumanity 
of nature's baser metal. 

" Oil, it is terrible, that in this beautiful world which the 
good God has given us, and in which there is plenty for us all, 
men should die of starvation ! You who have never been be- 
yond the jjrecincts of our own favored country ; you, more 
especially, who have always lived in this great valley of the Mis- 
sissippi — the cornucopia of the world — who see each day poured 
into the lap of your city food sufficient to assuage the hunger of 
a nation, can form an imperfect idea of the horrors of famine, 
of the terror which strikes men's souls when they cry in vain 
for bread. When a man dies of disease, he alone endures the 
pain. Around his pillow are sympathizing friends, who, if they 
cannot keep back the deadly messenger, cover his face and con- 
ceal the horrors of his visage as he delivers his stern mandate. 

" In battle, in the fulness of his pride and strength, little 
recks the soldier whether the hissing bullet sing his sudden 
requiem, or the cords of life are severed by the sharp steel. 
But he who dies of hunger wrestles alone, day after day, with 
his grim and unrelenting enemy. He has no friends to cheer 
him in the terrible conflict ; for if he had frieiids, how could 
he die of hunger ? He has not the hot blood of the soldier to 
maintain him ; for his foe, vampire-like, has exhausted his 
veins. Famine comes not up like a brave enemy, storming, 
by a sudden onset, the fortress that resists. Famine besieges. 
He draws his lines around the doomed garrison ; he cuts off all 
supplies ; he never summons to surrender, for he gives no 
quarter. Alas for poor human nature ! how can it sustain this 
fearful warfare ? Day by day the blood recedes, the flesh 
deserts, the muscles relax, and the sinews grow powerless. 
At last the mind, which at first had bravely nerved itself for 
the contest, gives way under the mysterious influences that 
govern its union with the body. Then the victim begins to 
doubt the existence of an overruling Providence ; he hates his 
fellow-men, and glares upon them with the longings of a canni- 
bal, and it may be dies blaspheming ! 

" Who will hesitate to give his mite to avert such awful 
results ? Surely not you, citizens of New Orleans, ever famed 



SEEGEANT S. PRENTISS. 231 

for your deeds of benevolence and cliarity. Freely have yonr 
hearts and purses opened, heretofore, to the call of suffering 
humanity. Nobly did you respond to oppressed Greece and 
struggling Poland. Within Erin's borders is an enemy more 
cruel than the Turk, more tyrannical than the Russian. Bread 
is the only weapon that can conquer him. Let us, then, load 
ships with this glorious munition, and in the name of our com- 
mon humanity wage war against this despot. Famine. Let us 
in God's name ' cast our bread upon the waters,' and if we 
are selfish enough to desire it, we may recollect the promise, 
that it shall return to us after many days. 

'' If benevolence is not a sufficient incentive to action, we 
should be generous from common decency ; for out of this 
famine we are adding millions to our fortunes. Every article 
of food, of which we have a superabundance, has been doubled 
in value by the very distress we are now called upon to alle- 
viate. 

" We cannot do less, in common honesty, than to divide 
among the starving poor of Ireland a portion of the gains we 
are making out of their misfortunes. Give, then, generously 
and freely. Recollect that in so doing you are exercising one 
of the most godlike qualities of your nature, and at the same 
time enjoying one of the greatest luxuries of life. We ought 
to thank our Maker that He has permitted us to exercise, equally 
with Himself, that noblest of even the Divine attributes, be- 
nevolence. Go home and look at your family, smiling in rosy 
health, and then think of the pale, famine-pinched cheeks of 
the poor children of Ireland, and I know you will give accord- 
ing to your store, even as a bountiful Providence has given to 
you — not grudgingly, but with an open hand ; for the quality 
of benevolence, like that of mercy, 

'• ' is not strained ; 
It droppeth as the gentle rain from heaven, 
Tpon the place beneath : it is twice blessed : 
It blesseth him that gives and him that takes.' " 

It is to be regretted that the remaining portions of this speech 
have not been preserved in their original beauty and purity. 



232 BENCH AND BAR OF MISSISSIPPI. 

They were rejected by Mr. Prentiss as Laving been spoiled by 
the reporter. 

It is useless to state the effect of this noble and touch- 
ing appeal upon the hearts of the generous citizens of New 
Orleans. They gave, and gave freely. The vessels were laden, 
and the fruits of this appeal were tasted by many a famished 
mouth ; while the prayers and blessings that went up from 
tliousands of woe-stricken hearts, for the unknown hand that 
had set this tide of generosity in motion, might have opened 
tlie gates of heaven to a fiend. 

But if benevolence was a pre-eminent trait in the character of 
Mr, Prentiss, his magnanimity was equally conspicuous ; while 
the fire of his ardor rendered him, at times, fierce in his denun- 
ciations, he was a generous foe, and quick to make the amende 
honorable when circumstances required. This quality was 
strikingly demonstrated during an unpleasant episode that 
occurred in 1848, the circumstances of which were as follows : 

James Erwin, a man of high standing and the son-in-law of 
the great Henry Clay, during some pecuniary transactions in 
New Orleans was made the subject of a suit which involved the 
charge of fraud, and conduct of a very dishonorable character. 
Mr. Prentiss was retained for the prosecution of the cause, in 
which capacity he encountered the venerable and distinguished 
John R. Grimes, at that time the acknowledged head of the 
New Orleans bar. The contest between them was that of 
^Eschines and Demosthenes, without their animosity. It was 
like the conflict of Cicero and Hortensius on the trial of Mursena. 
Mr. Prentiss was in wretched health at the time, which together 
with his pecuniary embarrassments rendered him, no doubt, 
unusually excitable and morose. These, conjoined with the 
vigor of the defence, caused him to transcend the bounds of his 
usual propriety so far as to assault the character and conduct of 
the defendant beyond the measure justified by the record. He 
is said to have been on this occasion extremely bitter and vitu- 
perative, and turning upon the defendant poured upon his head 
streams of the most caustic and withering animadversion, and 
on being interrupted by the counsel for the defence he pro- 
claimed himself personally responsible for his language. 



SEEGEANT S. PRENTISS. 233 

Soon after the close of tlie trial, Henry Clay Erwin, son of 
the defendant, a young man of only twenty years of age, and 
who resided in Kentucky, proceeded to New Orleans, and im- 
mediately challenged Mr. Prentiss to mortal combat. The 
challenge was peremptory. It gav^e him no chance for explana- 
tion, and left him no alternative but to fight or back down. 
Mr. Prentiss at first, in view of the circumstances and the tender 
years of his antagonist, listened to the persuasion of his friends, 
and hesitated ; but the young man nobly claimed the right to 
assume the quarrel of his father, and demanded an immediate 
answ^er. On the next morning Mr. Prentiss announced to his 
friends that he appreciated the feelings of " the gallant boy," 
as he called him : that he could not denv him the riplit he 
claimed, and that he should accept the challenge ; yet he post- 
poned the meeting for two Av^eks, for the purpose of arranging 
his private affairs, and in hope that the interval might afford 
an opportunity for an accommodation. This, through the exer- 
tions of mutual friends, was finally effected. The challenge was 
withdrawn, and Mr. Prentiss retracted the offensive language. 
After the adjustment, Mr. Prentiss addressed the following 
graceful and characteristic note to Mr. Erwin's second : 

" Robert Johnson, Esq. 

" Dear Sir : I am sincerely gratified that the difficulty be- 
tween Mr. Henry Clay Erwin and myself has been amicably ad- 
justed. From the beginning of this affair I have not enter- 
tained an unkind feeling toward Mr. Henry Clay Erwin. On 
the contrary, I honor and appreciate the sentiments by which 
he has been actuated, and under similar circumstances should 
probably have acted as he has done. 

" I can now say frankly, what might heretofore have been at- 
tributed to improper motives : I disclaim all personal or im- 
proper feelings in the matter out of which this controversy arose, 
as well as all "knowledge or approval of the newspaper publica- 
tions in relation to my remarks. I respond fully to the high 
and honorable sentiments which have marked your course in 
this matter, as well as that of your associates, and it gives me 
pleasure to acknowledge the same." 

The magnanimity of Mr. Prentiss on this occasion elicited a 
beautiful letter from Mr. Clay, expressing his joy at the result, 
and thanking him for his noble bearing towards his grandson. 



234 BENCH AND BAE OF MISSISSIPPI. 

Notwithstanding his natural amiability and gentleness of dis- 
position, Mr. Prentiss, during liis heated canvasses in Mississippi, 
found himself ■ called upon to engage in two duels, both of 
which were fought with Hon. Henry S. Foote, who was long 
one of his most strenuous political opponents. It was on one 
of these occasions, when his pistol had snapped and Mr. Foote's 
ball had passed over his head, that, on taking his position for 
a second shot, he saw a little boy ascending a tree in his rear, 
for the purpose of obtaining a better observation, and turning 
to him he cautioned him of his danger, remarking that Gen- 
eral Foote was shooting very wildly that day. 

Notwithstanding his promptness to resent a personal insult, 
and his readiness to accept personal responsibilities when his 
honor was in the least involved, he harbored not a revengeful 
thought, and was as ready to forgive as to propitiate. But he 
was in disposition by no means a saint or puritan. He was 
more of a gay, dashing, reckless cavalier ; more of a Coeur de 
Lion than a John Knox, and more of a John Smith than a 
John Carver. 

His beautiful letters to his mother and sisters have already 
been referred to. They breathe the very essence of genuine 
affection, and exhibit the poised scales of the inner man. His 
love for his wife and children seemed unbounded ; indeed, for 
many years before his death this seemed to be the only chain 
that bound him to the world, whose beauties he could so gor- 
geously depict. His health, which had long been feeble, became 
in 1849 so threatening as to occasion the utmost alarm to his 
friends. He became subject to a chronic dysentery, wliich was 
very much aggravated if not induced by his habits of life. This 
disease continued to grow at times more malignant until June, 
1850, when he became so emaciated as to be unable longer to 
attend to any business, which he refused to abstain from so long 
as he was capable of the least exertion. His last effort at the 
bar was made in the defence of General Lopez, the Cuban pa- 
triot, before the United States court. In behalf of this individ- 
ual, while he denounced his American abettors, his sjonpathies 
were warmly enlisted, and his exertions on the occasion utterly 
prostrated his last physical powers. He now consented to be 



SERGEANT S. PRENTISS. 235 

carried with Lis family to Natchez. Here he continued to rap- 
idly decHne, until the 1st day of July, 1850, when his spirit 
soared away to those beautiful realms from which he had always 
drawn his noblest inspirations, and the conception of whose 
beauties had modeled his grandest imae-es. 

The burial service was impressively performed by the vener- 
able Bishop Green, of the Ej)iscopal Church, who is still living 
to pronounce that last sad requiem of humanity, " Dust to dust, 
ashes to ashes." He was laid away by the side of the great 
river where he first stepped ujdoii the shore of his splendid 
triumphs. 

The death of Mr. Prentiss produced a deep and general feel- 
ing of regret throughout the country. Glowing eulogies upon 
his character and abilities were made at a meeting of the bar of 
New Orleans, and touching tributes were paid to his memory 
by the members of the profession in Natchez, Yicksburg, and 
Jackson ; but as all these were of the same tenor and sub- 
stance, the proceedings of the bar of Jackson only are intro- 
duced : 

" Pursuant to notice, the members of the Jackson bar assem- 
bled in the court-room of the chancery court, July 15th, 1850, 
to take some measures to express their sentiments relative to the 
decease of the Hon. Sergeant S. Prentiss. 

" On motion. Colonel J. F. Foute was called to the chair, and 
L. Y. Dixon appointed secretary. After a few remarks from tlie 
chair more expressive of the object of the meeting, on motion, 
William Yerger, John I. Guion, Caswell R. Clifton, and Dan- 
iel W. Adams, were appointed a committee to prepare a suit- 
able preamble and resolutions, who reported the following, 
\vhich were unanimously adopted : 

" The members of this bar have learned with unfeigned sor- 
row that their former companion and brother, the Hon. Ser- 
geant S. Prentiss, has departed this life. For upwards of fifteen 
years Mr. Prentiss was a citizen of the State of Mississippi, 
and during that period he established a reputation for legal 
learning and ability, for high-souled and chivalrous patriotism, 
and for spotless integrity and unsullied honor, which will en- 
dure as long as such qualities and virtues are cherished among 



236 BENCH AND BAK OF MISSISSIPPI. 

us. As an orator, the reputation of Mr. Prentiss is national. 
As a lawyer, the judicial annals of our country have been illus- 
trated by no brighter name or loftier intellect. As a politi- 
cian, he received the unlimited confidence and support of one 
great party, while his political opponents accorded to him un- 
questionable integrity of purpose and sincere devotion to his 
country. It is a source of pleasure and c»f pride to his friends 
to recount these things. Yet to the members of the bar, who 
knew him well and intimately, his social qualities, and the gen- 
erous impulses of a heart which always beat responsive to every 
sentiment of honor, friendship, manhood, and truth, render his 
name more dear tlian the brightest achievements of his intellect. 
Therefore, 

"1. Resolved, That as an orator, a statesman, and a jurist, 
the fame of Mr. Prentiss will adorn the brightest page in the 
history of the Eepublic. 

" 2.^ Resolved, That the name of Prentiss is identified with 
the history of Mississippi, and his memory will be forever 
cherished among the dearest and worthiest of her sons. 

"3. Resolved, That in the death of Mr. Prentiss the legal pro- 
fession has lost one of its brightest ornaments, and the members 
of this bar have lost a friend, endeared to them by every manly 
and social virtue which could add to the enjoyment of profes- 
sional intercourse, 

"4. Resolved, That, as a tribute to the memory of the de- 
ceased, the members of this Bar will wear the usual badge of 
mourning for thirty days ; and that John I. Guion, Charles 
Scott, and Daniel Mayes be appointed a committee to present 
the foregoing preamble and resolutions to the supreme and 
(rhancery courts, and ask that they be entered on the minutes 
of e^ch of said courts. 

" 5. Resolved, That John I. Guion be requested, at the Jan- 
uary session of the High Court of Errors and Appeals, to deliver 
an address commemorative of the distinguished abilities and 
the exalted private virtue of the deceased. 

" 6. Resolved, That a copy of these resolutions be forwarded 
to the family of Mr. Prentiss, with the assurance of the sincere 



SEEGEANT S. PKENTISS. 237 

condolence of the members of this bar in their great bereave- 
ment. 

" 7. Eesolved, Tliat the city papers be requested to publish 
these proceedings. 

"J. T. YoMiv. J President. 

"L. V. Dixon, Secretary.''^ 

At the opening of the session of the United States District 
Court in New Orleans, in November, 1850, the District-At- 
torney presented the resolutions of the bar of that city in refer- 
ence to the death of Mr. Prentiss, and moved that they be 
placed upon the records of that court, upon which Judge 
McCaleb delivered the following pathetic eulogy : 

" In granting the motion just made by the District- Attorney, 
I shall be excused, I trust, if I embrace the occasion to make 
a few remarks. 

" Amid the painful regrets we experience at the loss of Mr. 
Prentiss, w^e can still dwell with a melancholy pleasure upon his 
many noble qualities of head and heart. As the learned, able, 
and eloquent advocate, he was at all times the object of our 
warmest admiration ; as the kind and confiding friend, the hon- 
orable and chivalric gentleman, he had secured our affection 
and lasting regards. In our sorrowful reflections upon his de- 
parture from the active scenes of life, we can truly say that a 
lawyer of extensive and profound acquirements, an orator of 
rare powers of argumentation and of most brilliant fancy, a 
man of unsullied honor, a patriot of ardent devotion and un- 
daunted courage, and a friend whose generosity knew no 
bounds, has prematurely passed from the theatre of his useful- 
ness and his fame. 

" The intellectual endowments of Mr. Pre^itiss presented a re- 
markable example in which great logical powers and the most 
vivid imagination were hapi3i]y blended. With all his readi- 
ness in debate, he never failed, when an opportunity offered, to 
enter into the most laborious investigations to obtain the mas- 
tery of a subject. If he frequently sought to amuse, he rarely 
failed at the same time to instruct an audience. The rapidity 
with which he seized the strong points of a case, added to his un- 



238 BENCH AND BAE OF MISSISSIPPI. 

tiring assiduity, rendered liim at all times a most formidable 
adversary. 

" In liappy exhibitions of extemporaneous eloquence, in strik- 
ing illustrations, by a rapid and harmonious succession of brill- 
iant metaphors, he was rarely if ever excelled. But those who 
regarded him as a merely eloquent declaimer were widely mis- 
taken in their estimate of his powers. His honorable zeal in 
the assertion of the rights of a client, his high professional pride, 
his respect for an adversary and the court, prompted him, in all 
cases of importance, to a diligent and careful preparation. His 
own wonderful powers of illustration were at all times supported 
by the solemn mandates of authority; and the facility with 
which he was wont to call to his aid the thoughts or effusions of 
others, proves him to have been a student of an extraordinary 
memory and of unremitting diligence. His ideas of intellect- 
ual excellence were formed by an attentive study of the best 
models ; and those who enjoyed with him the pleasures of social 
intercourse are aware with what humility and veneration he 
paid his devotions to the shrine of ancient genius. No man, 
with all his admiration of modern excellence, was more prompt 
in according superiority to those master spirits of antiquity 
whom modern genius, with all its boasted progress, has yet sig- 
nally failed to outstrip in the race of true greatness and glory. 

" It was in 1845 that Mr. Prentiss removed from the State of 
Mississippi to this city, with a view to a permanent residence, 
and for the purpose of pursuing the practice of his profession.' 
He came with a brilliant reputation as a lawyer and an orator ; 
and I think it will be admitted by every candid mind that the 
public voice in other sections of the Union was not extravagant 
m its estimate of his abilities. His almost unprecedented suc- 
cess as an advocate before the tribunals of Mississippi ; his elo- 
quent efforts in the political arena, before large popular assem- 
blages in different parts of the country, and in the hall of the 
House of Representatives of the United States, had gained him 
universal applause, and indisputably established his claims to the 
possession of talents of the highest order. It was my fortune 
to be present at the Capitol at Washington in 1838, during the 
long and exciting debate which arose out of the Mississippi'^con- 



SEEGEANT S. PRENTISS. 239 

tested election. The most prominent cliampions who entered 
the list on that interesting occasion were Mr. Prentiss himself, 
then claiming his seat, and Mr. Legare, the distinguished jurist 
and scholar from South Carolina. It is neither my province 
nor desire to decide to whom belonged the chaplet of victory. 
It is sufficient to saj that the powerful and brilliant efforts of 
Mr. Prentiss, in the defence of his trying and important position 
as challenger of all comers, received the most enthusiastic en- 
comiums from political friends and foes ; and I take pleasure 
in testifying that from none did I hear a more unqualified ex- 
pression of approbation than was given to me subsequently, in a 
social interview, by the generous and accomplished antagonist 
to whom I have alluded. 

" The speech of Mr. Prentiss on that occasion was published 
in the journals of the day, and is among the very few of his 
remarkable exhibitions of argument and oratory remaining for 
the admiration of posterity. 

" We are told by Macaulay, in his elegant review of the 
writings of Sir William Temple, that ' of the parliamentary 
eloquence of the celebrated rivals (Shaftesbury and Halifax) 
we can judge only by report. . . . Halifax is described 
by Dryden as 

" ' Of piercing wit and pregnant thought, 

Endowed by nature and by learning taught 
To move assemblies." 

Yet his oratory is utterly and irretrievably lost to us, like that 
of Somers, of Bolingbroke, of Charles Townsend, of many 
others, who were accustomed to rise amid the breathless expec- 
tation of senates, and to sit down amid reiterated outbursts of 
applause. Old men, who had lived to admire the eloquence of 
Pulteney in its meridian, and that of Pitt in its splendid dawn, 
still murmured that they had heard nothing like the great 
speeches of Lord Halifax on the Exclusion Bill.' • 

" These observations on what must ever be regarded as most 
important omissions in the annals of parliamentary and forensic 
eloquence in England, remind us forcibly of similar omissions in 
our own history — omissions the more to be regretted because 



240 BENCH AND BAE OF MISSISSIPPI. 

thej deprive us forever, as in the case of our lamented friend, 
of the noble sentiments luminously arrayed, of those with whom 
for years we have daily enjoyed the delights of social inter- 
course. 

" In the case of Mr. Prentiss, the omission is the more unac- 
countable, and perhaps the more unpardonable, because of the 
great advantages he possessed of a finished education, and of his 
extraordinary readiness as a writer as well as a speaker. It was 
indeed a source of regret among his countless admirers that, 
with all his professional pride, with all his aspirations for profes- 
sional distinction, and all his ambition for victory in the politi- 
cal arena, he should have manifested such utter indifference to 
posthumous fame. He was sensitive to everything relating to 
his character as an honorable man ; he was careful to preserve 
imtarnished the fair escutcheon of an honorable name ; yet in 
the great intellectual conflicts in which he was so frequently 
engaged he was content with the contemporary applause so 
bountifully bestowed, and looked no farther. Posterity indeed 
will never be able to appreciate his intrinsic worth ; but his power- 
ful logic, his brilliant wit, the radiant coruscations of his fancy, 
his keen sarcasm and his melting pathos, will be treasured in 
the grateful recollections of those who were permitted to wit- 
ness their effect. They will long be remembered as the 

Fruits of a genial morn and glorious noon, 
A deathless part of him who died too soon.' 

' ' I have alluded to the professional pride of Mr. Prentiss. No 
man regarded with more profound veneration the luminaries of 
the law, and no man was more emulous of their triumphs. He 
felt that the science itself presented the noblest field for the ex- 
ertion of the intellectual faculties, and was deeply sensible of 
the high responsibilities assumed by all who embark in it as a 
means of acquiring a livelihood. He treated with scorn the vul- 
gar prejudice against it, founded upon the faults or delinquen- 
cies of Its unworthy members. It was tlie profession which, in 
his opinion, furnished the materials to form the statesman. It 
was the profession from which the patriot could provide the 
most efficient weapons to vindicate the freedom and honor of 



SERGEANT S. PRENTISS. 241 

his country. The boldest and most devoted clianipions of pop- 
ular liberty, in every civilized age and in every civilized clime, 
were, in bis opinion, to be found in tlie ranks of the legal pro- 
fession. He believed that in our own country they afforded one 
of the strongest bonds of the National Union. His sentiments on 
this subject were delivered with characteristic energy and zeal, 
and were suggested by the request with which he had been 
honored, by the Law Association of Harvard University, to de- 
liver the address at its annual celebration, I can never forget 
the feelings of gratilied pride he expressed on the reception of 
that invitation, or the emotions of regret he betrayed at being 
compelled by his feeble health to decline it. Had his physical 
strength been adequate to the task, Petrarch in the solitndes of 
Vaucluse never responded with a prouder enthusiasm to the 
summons from the metropolis of the world, to receive in its 
capital and from the hands of a Senator of Rome the laurel 
crown as the reward of poetic merit, than would our orator have 
obeyed the request of the members of his noble profession in 
that ancient university. But the triumph of Petrarch was not 
reserved for our friend. His melancholy fate more solemnly 
reminds us of that other devoted child of Italian song, who 
had ' poured his spirit over Palestine,' and whose summons to 
the honors of the laurel wreath was but a summons to his 
grave. 

" We feel that it was but yesterday we beheld our friend here 
in this hall, in the ardent and energetic discharge of his profes- 
sional duties, with a countenance pale and emaciated, but radiant 
M'ith the lire of genius ; with a frame feeble and exhausted from 
the ravages of disease, but with a spirit undaunted, a mind ever 
luminous, and exhibiting in every effort its almost superhuman 
energy. His mighty soul seemed ' swelling beyond the meas- 
ure of the chains' that bound it within its frail tenement. His 
surrender at last to the King of Terrors was the result of an- 
other victory of genius over a favorite son, and forcibly recalls 
the lines of the poet, in allusion to the death of a kindred 
spirit : 

" ' 'Twas thy ov/n genius gave the final blow, 

And helped to plant the wound that laid thee low ; 
16 



242 BENCH AND BAR OF MISSISSIPPI. 

So the struck eagle, stretclied upon the plain, 
No more through rolling clouds to soar again, 
Viewed his own feather in the fatal dart, 
And winged the shaft that quivered in his heart.' 

" Amid the excitement of the forum he was unconscious of the 
rapid decay of the organs of hfe. Heedless ahke of the solemn 
admonition of friends and the increasing debility of an over- 
tasked and broken constitution, he continued, day after day, to 
redouble his exertions, and seemed to regulate his physical'ac- 
tivity by the mighty energies of a mind that scorned all sympa- 
thy with the feeble frame on which it was dependent for sup- 
port. One of the most important arguments made by liim be- 
fore this tribunal-I allude to that in the case of the heirs of 
Pultney ;iN9. the City of Lafayette -was delivered from his seat, 
his declining health rendering it impossible for him to stand in 
the presence of the court ; and yet I may with confidence ap- 
peal to his able and generous antagonist on that occasion, to 
bear testimony to the systematic arrangei^ient and masterly abil- 
ity with which every argument, and all the learning that could 
t«nd to the elucidation of the important questions involved 
were presented to the court. ' 

" I have thus, gentlemen of the bar, in a manner perhaps some- 
what unusual, though I trust not inappropriate to the occasion, 
availed myself of the opportunity afforded by the presentation 
ot your eloquent resolutions to mingle my own feeble voice with 
the strams of eulogy which have already been heard, in heart- 
felt tributes to private and public worth ; to add my own hum- 
ble offenng at the shrine of genius ; to hang my own garland 
of sorrow over the tomb of a long-cherished friend : 

'^ ' To mourn the vanished beam, and add my mite 
Of praise, in payment of a long delight.' " 

The close of this touching tribute of Judge McCaleb seems 
indeed a fit point to terminate this sketch ; yet I will add a few 
passages from an article that appeared in the New Orleans Delta 
a the tm.e of the death of Mr. Prentiss, which sparkle with an 
eloquence and genius stiikingly kindred to that which they 



SEKGEANT S. PKENTISS. 248 

seek to picture and commemorate. It was from tlie pen of Mr. 
Walker, then editor of that paper, and a stanch political oppo- 
nent of Mr. Prentiss : 

"One of the most gifted men this conntrv has ever pro- 
duced, has fallen, in the very meridian of his genius and 
usefulness ! Sergeant S. Prentiss is no more ! Almost friend- 
less and unknown, he made his appearance at the bar of 
Mississippi, and soon a weak and debilitated boy, with gentle 
lisp, and supported by a sustaining cane, was seen stealing away 
the technical hearts of stern judges, and weaving seductive tales 
in the honest ears of sworn jurymen. Resistless as the pene- 
trating breeze, his juvenile eloquence searched every avenue of 
thought and feeling. The classic page and the varied mass of 
modern literature were conveniently stored away in the massy 
caverns of his broad and fertile intellect. A close train of di- 
dactic reasoning on the most abstruse legal topic was lit up 
with the pyrotechnic fires of his fancy. The most ordinary in- 
cidents of life, the merest commonplaces, were caught up on th(5 
wings of his imagination and blended and eifectively commin- 
gled, in his illustrative oratory, with the boldest and most gor- 
geous metaphors. 

'' With such talents, it will Qxcite no surprise that he met 
with the most brilliant success at the bar. Located in Vicksburg, 
ahnost at a bound he leaped into the very highest jwsition at 
the bar of Mississippi. 

" Few men in this country have ever risen more rapidly, or 
sustained themselves more successfully. Of Mr. Prentiss's 
career as a politician we need not speak : it will be found in the 
history of the country. His speeches in Congress secured hiui 
the most extended reputation as an orator. But, in truth, he 
had no taste for political life. He soon returned to his favorite 
arena — the bar — and resumed his splendid practice. The finan- 
cial troubles of 1836 fell upon Mr. Prentiss with great severity. 
He lost by them a princely fortune. In consequence of these re- 
verses he removed to this city, as affording a larger sphere for 
the exercise of his talents. Here he immediately took his posi- 
tion among the foremost of our lawyers. Many gentlemen of 
the bar, of great eminence in States where the common law 



244 BENCH AND BAR OF MISSISSIPPI. 

prevails, had not sustained here the reputation which they 
hron<rlit with them. Mr. Prentiss was an exception to this re- 
mark. The remarkable quickness and analytical power of his 
intellect enabled him in a very short time to master the rules 
and theory of a system of jurisprudence quite different from 
that in which he had loni? been trained. He soon achieved a 
position at the bar of New Orleans as prominent as that he 
occupied in Mississippi. 

" Nor was his mind ' cribbed, cabined, and confined' within 
the narrow limits of a mere professional life. He always iden- 
tified himself with every project of patriotism, benevolence, 
charity, or literature that was agitated in his vicinage. A 
monument to Franklin, or a sympathetic appeal in favor of strug- 
gling Hungary, or a donative response to the tearful orphan, or 
a commemoration of the birthday of the Bard of Avon, would 
equally fire his soul and syllable his tongue. He possessed one 
of the most highly endowed intellects we ever knew. His 
memory was singularly retentive, so that he could repeat whole 
cantos of Byron on the moment. His logical faculty was very 
acute and discerning. It was often the complaint of the court 
and his brother lawyers that he would argue a case all to 
pieces. He would penetrate to the very bottom of a subject, 
as it were, by intuition, and lay it bare in all its parts, like a 
chemist analyzing some material object, or a surgeon making a 
dissection. 

" His reading was full and general, and everything he gathered 
from books, as well as from intercourse with his fellow-men, 
clung to his memory, and was ever at his command. 

" But his most striking talent was his oratory. We have never 
known or read of a man who equalled Prentiss in the faculty of 
thinking on his legs, or of extemporaneous eloquence. He re- 
quired no preparation to speak on any subject, and on all he 
was equally happy. We have heard from him, thrown out in a 
dinner-speech or at a public meeting, when unexpectedly called 
on, more brilliant and striking thoughts than many of the most 
gifted poets and orators ever elaborated in their closets. He 
possessed a rare wit. llis garland was enwreathed with flowers 
culled from every shrub or plant, and from every clime. And 



JOHN I. GUION. 245 

if at times the thorn hirked beneath the bright flower, the wound 
it inflicted was soon assuaged and healed by some mirthful and 
laughter-moving 2)alliative. 

" His heart overflowed with warm, generous, and patriotic feel- 
ings. He WAS as brave and chivalrous as Bayard, as soft, ten- 
der, and affectionate as a loving child untainted by the selfish- 
ness of the world. His bosom was the home of honor, and all 
narrow, selfish feelings were foreign to his nature. 

"It is proper that such a mind should thus glide from these 
scenes of worldly trouble. It is just that a bright exhalation, 
which has shone so brilliantly, should disappear thus suddenly 
ere it begins to gradually fade and flicker ; that the fire of so 
noble an intelligence should not diminish, and slowly go out 
amid decrepitude and physical decay ; but that, like the meteor 
shooting across the heavens, illuminating the earth, it should 
sink suddenly and forever into the earth from which it sprung. " 



JOHN I. GUIOX. 

The subject of this sketch was born and reared in Adams 
County, Mississippi. His parents were natives of South Caro- 
lina, and were of Huguenot origin. Mr. Guion was educated 
in Tennessee, and studied law at Lebanon in that State. Here 
he met William L. Sharkey, and here a friendship was con- 
tracted between them which subsisted throughout their lives. 
On returning to Mississippi they entered into a copartnership 
for the practice of law, in Vicksburg, which association existed 
until Judge Sharkey was raised to the circuit bencli, in 1832. 
Mr. Guion then united in practice -with the celebrated Sergeant 
S. Prentiss, who was then approaching the height of his foren- 
sic fame, and this copartnership continued until 1836. During 
that year the Legislature established an inferior court of ex- 
clusive criminal jurisdiction in the counties of "Warren, Clai- 
borne, Jefferson, Adams, and Wilkinson. It was styled the 
" Criminal Court," and liad concurrent jurisdiction with the 
circuit courts of these counties over all crimes, misdemeanors, 
and matters of a criminal nature. Mr. Guion was appointed 



246 BENCH AND BAR OF MISSISSIPPI. 

the first judge of this court, over which he presided about a 
year, and then resigned. Judge Guion now resumed the prac- 
tice of law, and his old partner, Mr. Prentiss, having been 
elected to Congress, he associated with him William C. Smedes. 

In 1851 Judge Guion was President of the Mississippi Sen- 
ate, and on the resignation of Governor Quitman, in February 
of that year, became, by virtue of his office, acting Governor 
of the State, which position he held until the next Governor- 
elect was inaugurated, in 1852, 

On his retirement from the executive chair Judge Guion 
was elected Judge of the Circuit Court, which seat he occupied 
until the time of his death, which occurred in 1855. 

Judge Guion was one of those characters whose lustre glows 
with a serene and steady light, and which was never shadowed 
by the brilliancy of his eminent professional associates. While 
the genius of Mr. Prentiss dazzled with its gorgeous flashes, 
that of Judge Guion enchanted admiration, not so much by its 
magnitude as by the fixed mellowness of its effulgence. 

As a judge he was able, upright, and pure, readily comprehen- 
sive of every point upon which a proposition hinged, liberal in his 
interpretation of law for the advancement of justice, and watched 
the poise and inclination of its scales with a jealous and consci- 
entious eye. 

As a lawyer Judge Guion was fully worthy of 'the eminent 
distinction he enjoyed. Thoroughly versed in all the principles 
of the science, he was proficient in all the functions of 'the pro- 
fession ; and while he cannot be said to have been assiduous in 
application, his great ability and comprehensive views precluded 
the necessity of that constant labor which success requires of 
ordinary minds. He had in early life acquired a thorough 
knowledge of the rudiments and fundamental principles of law, 
and these he so wove in with his own judgment and percep- 
tions that they constituted a lucid stream which continually 
flowed through his mind, and was constantly fed by the estua- 
ries of his superb genius. 

But while his discussion of legal questions was marked with 
great adroitness and force, the power which Judge Guion could 
at all times exercise over the minds of the jury constituted, 



JOSEPH HOLT. 247 

perhaps, the most prominent feature of his forensic eminence. 
His great integrity and love of justice, his kindness of lieart, 
which continually beamed in his face, lurked in every tone of 
his voice, and gave air to every act and gesture of the man, 
were even superior in effect to the charms of eloquence, in 
which he was by no means deficient. 

Judge Gnion was a great favorite with his brother members 
of the bar, and was popular with all classes of the people. He 
displayed always a warm and attractive cordiality, a sincere 
suavity of manner, and a courtesy that gushed from tlie pure 
fountains of benevolence. Indeed, Icindness was the controlling 
attribute of this great and good man — a man whose abilities were 
well worth the fee of fame, and whose many endearing traits of 
character entitle his name to be entwined with Avreaths of livinar 
green in the memory of every Mississippian who delights to 
cherish and honor the noblest virtues of humanity. 



JOSEPH HOLT. 

Joseph Holt was born in Breckenridge County, Kentucky, 
in the year 1807. He received a thorough and finished educa- 
tion in the college at Danville, and was thoroughly trained for 
the profession of law. He was admitted to the bar at Eliza- 
bethtown in 1828, soon attained a high rank as a lawyer, and 
served with distinction as district-attorney there, previous to liis 
emigration to Mississippi. He removed to the latter State in 
1837, and settled first at Jackson, where he resided a short time, 
and then removed to Vicksburg. He brought with him to 
Mississippi a high reputation both as a lawyer and politician. 
He had taken a prominent part in the race of Richard M. John- 
son for the \' ice- Presidency, and in tlie National Democratic 
Convention of 1836 had delivered a speech that gave him great 
credit, and which was read with admiration throughout the 
Union. 

With such a prestige his reception in Mississipjii was of 
course warm and flattering, and which, with his unassuming 
dignity of manners and great abihty as a lawyer, placed him at 



248 BENCH AND BAR OF MISSISSIPPI. 

once in the front rank of the profession, and he became one of 
the brio-htest hghts that ever slied lustre upon the bar of Mis- 
sissippi. 

Mr, Holt was gifted with a mind of brilliant powers. His 
perceptions were remarkably acute and penetrating ; his com- 
prehension as vast as the range of fact and the field of juris- 
prudence ; and in the discussion of general principles of law 
he had no superior at the Mississippi bar. His mild and gentle 
manners, calm demeanor, and dignified bearing, conduced 
greatly to the triumphant effect of his logic. His accomplish- 
ments as a forensic orator were of the most forcible and striking 
character. Clear and comprehensive in the statement of his 
eases, Avell fortified at all times by precedent and analogy, lucid 
and logical in his arguments, fair and exact in his summation, 
with a ready and unlimited command of language, his eloquent 
and stirring perorations bore away the sympathy and judgment 
of courts and juries into an irresistible current of (conviction. 

Mr. Holt was engaged in many of the most important cases 
ever brought before the courts of the State, and was frequently 
the opponent of Mr. Prentiss, of whom he was, in some way, con- 
sidered a prominent rival. Indeed, Mr. Holt had numy friends 
and admirers who claimed for him the meed of sujieriority. He 
was a strong advocate of Democracy, while Mr. Prentiss was a 
Whig, and this caused, no doubt, a claim to be advanced by 
their respective friends which neither of the eminent counsel 
advocated. They were opponents in the noted case of Vick d 
al. vs. the Mayor and Aldermen of Yicksburg. In this case 
Newit Yick, who owned the soil where Vicksburg now stands, 
proceeded in 1819 to lay otf lots for the future city, leaving the 
space between the front street and the river as a common for 
the use of the future inhabitants, and according to this plat 
began to dispose of the lots, but died soon after. The town 
was built pursuant to this plan, but in 1836 the heirs of Vick 
laid claim to the " common." The board of Mayor and Alder- 
men filed a bill in chancery to quiet title in the city, claiming 
that the property had been dedicated by Newit Vick to the 
public use. 

Mr. Holt was engaged as leading counsel for the complain- 



JOSEPH HOLT. 241> 

ants, and Mr. Prentiss for the defendants. The suit involved 
more tlian lialf a million of dollars, and was managed on hoth 
sides with the most consummate skill and ahilitj. The Chancel- 
lor decided in favor of the city, upon which Mr. Prentiss ap- 
pealed to tlie lTii>;h Court. Tiie able arguments of the counsel 
were written, and are found reported in full in 1 Howard, 379. 
In this case the whole question of dedication of easements and 
public uses was thoroughly and ably argued. The question is 
an interesting and important one, from the fact that it involves 
many conflicting precedents, and that there has been no fixed 
line drawn between express and implied dedications. 

The Higli Court reversed the decree of the Chancellor, and 
dismissed the bill and injunctions, upon which Mr. Holt took 
the case to the Supreme Court of the United States, which in 
turn overruled the decision of the High Court and sustained 
the decree. 

The arguujents in tliis case will well repay the close study of 
any practitioner. 

After having remained about ten years at the Mississippi 
bar, and having reaped an ample fortune from his practice, 
Mr. Holt returned to Kentucky, and took up his residence in 
the city of Louisville ; soon after which he went abroad, visit- 
ing various countries in Europe, and on his return to the United 
States he was, in 1857, appointed by President Buchanan as 
Commissioner of Patents at Washington. In 1859 he became 
Postmaster- General, and on the resignation of John B. Floyd, 
in 1860, he was placed for a short time at the head of tiie War 
Department. 

In 1862 he was appointed Judge Advocate General of the 
United States army, and in that capacity took a prominent 
part in the trial and execution of the unfortunate Mrs. Snrratt, 
the first woman ever executed by authority of the United States 
Government. For his connection with this matter, whatever 
may have been his official attitude and obligations, he has re- 
ceived, and no doubt will always receive, the disapprobation of 
all fair-minded mankind. ^--^ 

After this transaction, and the expiration of his office as Judge 
Advocate, Mr. Holt retired from public view, and has since lived 



250 BENCH AND BAK OF MISSISSIPPI. 

in obscurity. It is hard to conceive that the amiable Joe Holt 
of the Mississippi bar was the merciless Judge Holt of the Sur- 
ratt trial. 

Truly may it be said, in view of him, that no man's life is 
made up until his death. Whether it be from a higher degree 
of conscientiousness or not, yet it is a fact worthy of note that 
Judge Holt is the only person immediately responsible for the 
issue of that trial who has not come to an unfortunate end ; and 
whatever may be his official justification, his name will be for- 
ever connected with an event that will remain a stigma upon 
the Government, which all the waters of Jordan can never 
cleanse. 



VOLNEY E. HOWARD. 

The subject of this sketch was a native of the State of Maine, 
where he received a finished education, and was thoroughly 
prepared for the profession of law. When quite a young man 
he determined to seek for fortune and fame in the great South- 
west, and turning his steps thither he arrived at the capital of 
Mississippi atiout the year 1830, and immediately entered upon 
his profession, in which he so rapidly rose in the confidence 
and esteem of the bar and the people that, in 183Y, he was 
chosen reporter of the decisions of the High Court of Errors 
and Appeals. 

His reports are distinguished for regularity and systematic 
arrangement, and his captions and syllabuses are lucid, compre- 
hensive, and exact. He also took a prominent part in the poli^ 
tics of the day, and was for several years editor of the Missis- 
sippian, a newspaper published at the capital, and the leading 
Democratic organ of the State. He was a vigorous and caustic 
writer, and attacked with scathing rebuke and sarcasm every 
measure which he deemed false to the interest and welfare of 
the people, while he maintained with inveterate alacrity and 
eloquence the true principles of his party. 

His paper wielded a great influence throughout the State, 
and the force and ability with which he inculcated his views 



YOLNEY E. HOWARD. 251 

caused them to be deeply impressed both upon public policy 
and private enter]3rise. 

Mr. Howard was a man of undoubted ability, and a lawyer 
of no ordinary capacity. Like Mr. Prentiss, he came to Missis 
sippi without means and without friends, and with the suspicion 
and prejudice existing at that time in the minds of the South- 
ern people against all natives of New England staring him in 
the face, and which nothing but the most amiable character, 
the most upright conduct, and eminent merit could have so soon 
and so completely dispelled as to admit him to the full confi- 
dence and to the warmest support and patronage of the people. 

About the year 1847, Mr, Howard, allured by the spacious 
fields of that rising empire, removed to the State of Texas, and 
In 1850 was a member of the Texan Legislature, in which he 
took an active and able part in the affairs of the State, and in 
the interest of the Missouri Compromise measures, which were at 
that time agitating the waters of national politics. In conse- 
quence of which he was sent by the President of the United 
States to California, on a mission of importance regarding the 
organization of that State, where he established his residence, 
and acquired much additional reputation in his profession. 

By untiring industry and unswerving devotion to duty he 
surmounted difficulties that would have deterred less resolute 
spirits from the pursuit of fame, and, bursting from the gyv^es 
of every shackle of circumstances, his abilities carried him 
rapidly up the ladder to professional and political distinction. 



252 BENCH AND BAR OF MISSISSIPPI. 

ANDERSON HUTCHINSON. 

Anderson Hutchinson was a native of Greenbrier County, 
Virginia, where he received a common-school English educa- 
tion, most of which he acquired at intervals while assisting his 
father in his office, which was that of clerk of the county courts. 
Here he also acquired some practical knowledge of legal forms 
and processes, which was, no doubt, the foundation of those 
habits of accuracy and that expertness in the preparation of 
legal documents, which characterized his practice. 

On reaching the age of manhood Mr. Hutchinson emigrated 
to Knoxville, Tennessee, where he was admitted to the bar, 
and soon acquired considerable reputation. This he achieved 
by means of perseverance and a vigorous devotion to the pro- 
fession, as well afi by the native faculties of his mind, whicli 
the very touch of learning kindled into a flame of genius. 
After practising some years at Knoxville, he removed to Hunts- 
ville, in North Alabama, and there encountered, with increasing 
reputation, the eminent lawyers of that noted bar. He then 
removed to Mississippi, and established his residence in tlie 
town of Raymond, in Hinds County, about the year 1835. 

In 1840 he published, in conjunction with Yolney E. Howard, 
a Digest of the laws of Mississippi, for which the Legislature 
allowed him $12,000, purchasing fifteen hundred copies, and in 
1848 he published his Mississippi Code. T^iis is undoubtedly 
a work of great merit, and required an incalculable amount of 
labor as well as great ability in its preparation. It is not a 
digest, nor revision, nor a compilation of the statutes at large, 
but an analytical compilation, excluding all enactments not in 
force except those which were necessary to explain some right 
originating from them, or requisite for affording an insight into 
existing statutes. 

The plan of this work conforms to the admirable analysis of 
Blackstone's " Commentaries," and in its arrangement presents 
a striking novelty as well as an exhibition of marked genius. 

This work gave entire satisfaction, and the Legislature 
ordered two thousand copies to be distributed among the officers 
of the State. 



ANDEKSON HUTCHINSON. 253 

About the year 1850, Mr. Hutchinson removed from Missis- 
sippi to the State of Texas, and there acquired sucli an exalted 
reputation as a lawyer and a man of integrity that he was made 
one of the judges of the Supreme Court of that State. He had 
been but a short time on the supreme bench when, while sittino- 
on the trial of an important case in the city of San Antonio 
before the boundary lines between the United States and Mexico 
had been fully established, a band of armed Mexicans rushed 
into the town, captured the court-house, and carried away the 
judge and other officers of the court as prisoners to the castle 
of Perote. Here he was closely confined, and subjected to 
great hardships. This act caused a thrill of indignation through- 
out the country, and the American minister at the city of 
Mexico, the celebrated "VVaddy Thompson, promptly demanded 
liis release and reparation for the outrage from the Mexican 
Government. His release was effected, and satisfactory repara- 
tion made. 

Judge Hutchinson then returned to Mississippi, and renewed 
his practice in copartnership with Henry S. Foote. 

As a lawyer Judge Hutchinson owed his success and celebrity 
more perhaps to an accurate and laborious preparation of his 
cases than to any pre-eminent feature of ability. He was deeply 
read in the law, and by application and indefatigable industry 
availed himself fully of his extensive knowledge and good judg- 
ment. The accuracy of his pleadings, his uniform urbanity and 
simplicity of manners, his fidelity to his clients, and the force 
of character which he brought to bear upon a cause, all con- 
tributed to his great popularity and success. He possessed an 
extraordinary degree of promptness, decision, and energy, 
which, with a sincere kindness of heart and love of justice, 
enlisted for him a confidence which no power could shake. He 
died in the year 1853. 



254 BEjS^CH and BAR OF MISSISSIPPI. 

DANIEL MAYES. 

Daniel Majes was a native of Kentucky, and had achieved 
success and reputation at the bar of that State prior to his re- 
moval to Mississippi. He came to this State about the time of 
the exodus of the Chickasaws and Choctaws, an event whieli 
occasioned a renewed tide of immigration of all classes of per- 
sons to occupy the lands vacated by the Indians. He had also 
filled with distinction a chair as professor of law in the Transyl- 
vania University, and found at the bar of Mississippi many of 
the younger members whose legal knowledge was due to his 
instruction, and who entertained great respect for his personal 
qualities, and a profound reverence for his professional abilities. 
He established his residence at the capital of the State, and im- 
mediately entered upon a highly successful and brilliant career 
at the Mississi ppi bar. 

His knowledge of law was scientific and thorough, and he 
was a master of the intricate system of common-law pleading, 
which, notwithstanding the statutory simplification, afforded him 
great advantage in the preparation of his cases and in the pre- 
sentation of special issues. His reputation, dignity of charac- 
ter, and urbanity of manners, soon engaged a confidence which 
caused him to be called in the most important cases, and to 
become involved in the most distinguished competition. Yet 
his learning and legal abihty in every instance achieved the full 
measure of expectation. 

His arguments were characterized by a depth of research, an 
astuteness of reason, and a logical exactness difficult to re- 
fute or even to palliate under ordinary circumstances. Every 
volume of reported decisions responded to his call for precedent, 
and his acute observation and keen comprehension extracted 
authority from the most subtle analogies. 

His argument in the case of Jane B, Ross et al. vs. Vertner 
etal.,r) Howard (Appendix), is a brilliant exemplification of 
these traits. 

In this case the superiority of the right of inheritance over 
that of devise is luminously discussed and triumphantly vindi- 
cated. He contends that tlie right of inheritance is founded in 



DANIEL MAYES. 255 

nature as well as in the laws of the land ; that it is of hie-lier 
antiquity, as recognized and established bj human law, than the 
testamentary right ; and that the testamentary right, so far as 
it exists by human law, was instituted not because of its con- 
forming to human reason or right, but to prevent certain abuses 
growing out of the original, indefeasible nature of the right of 
inheritance, such as the disobedience of children and the neglect 
of tiHal duties, and to prevent " the robust title of occupancy 
from again taking place." 

He ridicules the use made in the arguments of the Chancellor, 
of the parenthetical expression of Sir William Blackstone, that 
the power given to a dying person of continuing his property 
by disposing of his possessions by will is ".« kind of secondary 
law of nature, ' ' and adds : ' ' This phrase of Blackstone, ' a hind 
of secondary law of nature,'' is one of the few expressions to be 
found in that very accurate and learned author which conveys 
no idea to the mind. 1 defy any one to fix a definite and dis- 
tinct idea to, and give a definition of the phrase, ' a hind of 
secondary law of nature.' We can see what the author meant, 
by resorting to the preceding words, but otherwise these words 
are a mere empty sound. Blackstone himself considered the 
phrase of no import, and therefore threw the words into paren- 
thesis as not affecting the sense of, or being important to, the 
paragraph ; and yet the Chancellor lays hold of this loose paren- 
thesis, thrown into a sentence rather by way of flourish than to 
illustrate the subject, and which evidently has no reference to 
the position which Blackstone was maintaining, and makes thnt 
loose expression the turning jjoint of his opinion." 

This able and elaborate argument of Mr. Mayes will well 
repay careful perusal and reflective study. Yet in reply to the 
argument of the opposing counsel, that a person may, unless 
prohibited by law, direct in his will any disposition of his prop- 
erty after his death which he conld have legally made during 
his lifetime, it seems to the writer that he might have properly 
taken a position which he hesitated to assume — namely, that 
the right of posthumous dominion is not coextensive with the 
right of disposing of one's property whilst living. If the words 
" may direct in his will" imply an obligation upon the law t<; 



25(5 BE^^CH AND BAR OF MISSISSIPPI. 

aid in executing the privilege granted, without which it would 
be of no avail, it is certainly subject to restrictions which have 
no power over the exercise of personal control. A man may 
take his property to the middle of the Atlantic, and there 
empty it into the sea, without legal restraint, but should he 
direct such a disposition of it by his ^yill— an institution which 
derives its origin and power of operation only from positive 

law would that law lend its aid to the enforcement of such a 

heartless behest? or would it not rather intervene to frustrate 
such an impolitic destruction, notwithstanding that all the 
powers of metaphysics should combine to establish the sanity of 
the testator ? 

A man may make many dispositions of his property, in their 
nature contrary and repugnant to all reason, provided he affects 
neither the rights nor the morals of others, but which the law 
would not sanction or promote by giving effect to an unreason- 
able bequest ; and hence it is not true that the right of testa- 
mentary control' of property is as coinprehensive as the right of 
disposition during life, and neither has that sacred sanction 
which gives force to the laws of equitable inheritance. 

Mr. Mayes possessed an astuteness and sagacity of precaution 
which gathered every legitimate and honorable means within 
the spacious limits of his resources, and he was as fertile in 
method as in the invention of expedients. It is related of him 
that he was once employed in the defence of an unfortunate 
man who had unintentionally killed a woman, who was residing 
with him, by a stroke on the head while she was in the act of 
inflicting great bodily harm on his sick wife, and in order to save 
hisclient from a verdict of murder it became necessary to intro- 
duce the daughter of the latter as a witness — a little girl of ten 
years, who was the only witness to the circumstances ; but the 
tenderness of her age and her ignorance suggested the appre- 
liension that she would not be able to stand the ordeal to which 
she would be subjected upon cross-examination. 

Under these circumstances, Mr. Mayes procured a continuance 
of the case, and ordered the little girl to be placed at school and 
thoroughly instructed as to the nature of truth and the obliga- 
tions of an oath. The plan was successful, and at the next term 



DANIEL MAYES. 257 

of the court the little witness detailed the circumstances of the 
killing with a firmness and consistency that baffled every at- 
tempt to impair her testimony, and saved her father from the 
gallows. 

These circumstances were well calculated to kindle every spark 
of his genius, and his speech on this occasion is said to have 
been a most brilliant combination of argument and eloquence, 
of pathos and lucidity, and a depth of research that greatly in- 
creased his already distinguished reputation as an advocate. 

As an orator Mr. Mayes is said to have possessed a round 
measure of grace and polish. Masterly in his command of lan- 
guage, yet unostentatious in his style, he valued more the ex- 
pressions of forcibility than the flourish of rhetorical ornamenta- 
tion ; hence his elocution was calm, terse, and vigorous ; his 
phraseology accurate, and his choice of words apt and felicitous. 

His manners were exceedingly placable and winning, and his 
sense of professional propriety nice almost to a degree of fastid- 
iousness. Quick to assert his own dignity, he took no unseemly 
liberties with the feelings and sensibilities of others, but a uni- 
form politeness and calm courtesy pervaded all his actions, and 
characterized both his professional and social intercourse. 

As a man he was warmly sensible to the feelings of philan- 
thropy and benefaction. He was kind, charitable, and benevo- 
lent, and always ready to aid any enterprise for tlie advance- 
ment of the public good or the relief of individual suffering. 

That such a man should have enjoyed the highest esteem as 
a lawyer, a scholar, a citizen, and a man, and that he should 
have gone down to his grave with the regrets of his fellow- 
citizens and the benisons of hallowed memories, is but in con- 
formity with the experience of mankind, the dictates of hu- 
manity, and the will of Heaven. 



17 



258 BENCH AND BAR OF MISSISSIPPI. 

WILLIAM E. ANDEPvSON. 

It seems to be a characteristic of human nature, particularly 
in its less cultivated state, to associate great deeds and eminent 
qualities of the mind with great physical strength. We natural- 
ly expect that which is grand in nature to inspire us with the 
feeling of sublimity, and this expectation is readily transferred 
to the persons of famous individuals. The Scythians conceived 
Alexander the Great to be some mighty giant whose very pres- 
ence would inspire the feelings of awe and reverence, and were 
overwhelmed with surprise when a man of less than the ordi- 
nary size was pointed out to them as the great conqueror. And 
even more prone are we to expect great mental qualities from 
a powerful physical organization, notwithstanding that we may 
remember that the mighty Achilles, after slaying the great Hec- 
tor, succumbed to the comparatively feeble javelin of Paris, and 
that the fragile sling of the youthful David was more effective 
than the ponderous beam of Goliath. Whether it may be 
ascribed to an elevated state of mind kindred to that produced 
by sublimity, or to the influence of some subtle mesmeric agency, 
it is certain that a portly physical aspect and stentorian tone of 
voice, when there is no apparent effort to daunt or overawe, add 
greatly to the force of an orator and advocate ; and wlien these 
are really combined with great powers of intellect the pre-emi- 
nence is complete. 

Such was in a great measure the composition of the character 
depicted in this sketch. 

William E. Anderson was a native of Virginia, and of the 
county of Rockbridge, and had achieved reputation as a lawyer 
in the State of Tennessee prior to his advent to the bar of Mis- 
sissippi, about the year 1835. He possessed a vigorous intellect 
as well as a huge physical frame, and his powers as an advocate 
attained consijicuous notoriety. While Mr. Anderson was tho- 
roughly familiar with the general principles of law, he was 
by no means a person of studious habits, and was much fonder 
of the pleasures of desultory reading than of obedience to that 
stern restraint and zealous application which the jealousy of the 
law demands from all who would wear its garlands of honor and 



WILLIAM E. Al^DERSON. 259 

its wreaths of victory. But Mr. Anderson was one of tliose in- 
dividuals whose deficiency in one quality generally requisite to 
success was in a great measure countei-poised by the prepon- 
derance of others. His imposing personal appearance, forcible 
poM'ers of oratory, quick comprehension, and constant flow of 
humor, obtained for him a position as. an advocate which others 
reach only by rare gifts, or by constant and laborious applica- 
tion. 

Notwithstanding the excitabihty of his temperament and the 
somewhat blustering air of his manners, Mr. Anderson was 
a man of great amiability and gentleness of disposition. The 
qualities of his heart seem to have been developed pari passu 
with those of his mental and physical traits. He was of an ex- 
ceedingly cheerful turn of mind, fond of innocent frolic and 
fun, and enjoyed life and the pleasures of society with all the 
gusto that usually pertains to those who are possessed of a culti- 
vated fancy, a clear conscience, and a robust constitution. 



CHAPTER VIIL 



THE BAR— EMINENT LAWYERS— 1832-1861. 

GEORGE S. YERGER ROGER BARTON JACOB S. YERGER ALBERT G. 

BROWN PATRICK W. TOMPKINS HENRY S. FOOTE JOHN H. MARTIN. 



GEORGE S. YERGER. 

While Nature, in her partiality, designates here and there 
an individual as the favored recipient of her special endow- 
ments, and ordains him to a particular sphere of eminence, it is 
rarely that she groups such an array of special talents within the 
limits of a single family, and fashions the intellectual traits of so 
many of its members in the mould of greatness, as was vouch- 
safed to that to which belonged the subject of this sketch. The 
Yergers seem to have been born lawyers. There were six broth- 
ers in this family, who attained to the highest rank at the bar, 
and the judicial records of both Tennessee and Mississippi bear 
everlasting testimony to their usefulness and their genius. 
Their characters glowed with a remarkable similitude, and they 
moved through their orbits of greatness with the uniformity and 
unison of a brilliant constellation. 

George S. Yerger was born in Greensburg, Westmoreland 
County, Pennsylvania, about the year 1808. His father was of 
Dutch origin, and belonged to that sturdy yeomanry which gave 
early and lasting prosperity to the Middle States of the Union. 
With a large family and limited means, he emigrated, in 1816, 
to the neighborhood of Lebanon, Tennessee ; and it wjis there 
that his eldest son, George, found an opportunity to gratify his 
early aspirations, who, having obtained a tolerable education, 
turned his attention to the study of law, and was soon admitted 
to the bar. lie then located in the city of Nashville, where he 



262 BENCH AND BAK OF MISSISSIPPI. ' 

was for many years reporter of the decisions of tlic Supreme 
Court of Tennessee, and became one of the most eminent mem- 
bers of tliat bar. 

In tlie prime of a vigorous manhood and gh^wing reputation, 
he removed, in 1838-9, to the State of Mississippi, and located 
at Yicksburg. Here his reputation, which stamped itself upon 
his advent, soon spread throughout the State, and he took his 
position among the foremost lawyers of the country — a position 
which he maintained with a growing tenure and extending rec- 
ognition to the day of his death. 

Mr, Yerger was, in every sense, a thorough lawyer. He 
was master of the science of law in all its branches, and his 
mind was richly stored with all manner of precedents, which he 
had thoroughly digested, and so stratified in the capacious cham- 
bers of his mind that, with the aid of a vivid memory, they 
furnished him unfailing resources in every emergency. If 
there was any decision which could by parity or analog}'' be 
brought to bear upon his view of a question, he was sure to in- 
voke the comparison. But his genius depended not alone upon 
precedent : his penetrating judgment and keen understanding 
found a ready interpretation of the most marked features, and 
opened a patli for justice through the most untrodden field, of 
circumstance. 

Mr. Yerger was not an orator, so far as that quality depends 
upon the embellishments of fancy. His mind was too matter-of- 
fact in its bent and too exacting in its candor to indulge in the 
mere visions of imagination, and he disdained all its "flower- 
decked plats and blooming parterres." He was eloquent in the 
depth of his convictions, in the earnestness of his manner, in the 
logical train of his thoughts, in the force and. power of his lan- 
guage, and in the moral mesmerism of the man. He sought 
only for facts, and these he would render at first transparent, 
then luminous, and then dazzling, to the most obtuse mind of 
obstinacy, prejudice, or unbelief. The gentle and sure-footed 
gradations with which he advanced from the obscure to the ap- 
parent, from the dark to the visible, from the murky clouds of 
doubt to the open glare of conviction, riveted the mind of hon- 
est inquiry and kindled perception in the eye of the dullest 



GEOEGE S. YERGER. 263 

comprehension. If this be eloquence, he possessed that 
quality. 

He knew how to avail himself of every consideration that 
tended to awaken the feelings of sympathy and gain the good- 
will of courts, juries, and audiences ; not, however, by specious 
declamation or the cunning arts of suasion, but by an appeal to 
the nobler passions of men : a true sense of justice, a sound 
moral rectitude, and to a just and full comprehension which he 
quickened in the minds of his hearers by his accurate and lucid 
interpretation and sound reasoning. 

He planted himself firmly upon first truths and fundamental 
principles, and from these his mind, armed with the lance of 
penetration, clad in the mail of a sound judgment, and dis- 
ciplined by correct association, sallied forth to meet every com- 
bination of circumstances and every challenge of emergency. 
Fallacy he detested, and to it showed no quarter ; while his plain 
logic intersected the winding paths of ambiguity with the 
straight road of truth. 

To these traits of mind and professional accomplishments Mr. 
Yerger added the noblest qualities of the heart, and to which 
his intellectual powers were subordinated by means of a rare 
moral regimen which he made the rule of his thoughts and ac- 
tions. Here, indeed, lay the great power of the man — the 
source from whence sprung those goodly qualities and kindly 
manifestations which rendered his life an example of benevo- 
lence, neighborly kindness, and rectitude. 

In addition to the glare of its ability, his career at the bar was 
characterized by an uninterrupted glow of professional gentility 
and ethical urbanit3^ He never lost his placidness by the rul- 
ing of the court ; nor w^as his courtesy ever scorched by the 
heat of argument. He indulged in no fierce denunciations or 
coarse invectives, and though fervid and emphatic in maintain- 
ing his positions and illustrating his points, he disdained the 
weapons of depreciation and ridicule ; but, always kind, candid, 
and courteous towards court, counsel, Avitness, and juror, he 
wove into his professional character a web of beautiful ethics 
no less adorning and expedient than its woof of genius or its 
warp of talent. 



264 BENCH AND BAR OF MISSISSIPPI. 

In social and domestic life he was no less conspicuous for the 
amenity and affection with which he ornamented those circles. 
While he was a faithful laborer, and complied patiently with the 
stern requirements of his profession, he reserved ample time for 
acts of neighborly kindness, for the dispensing of an open-hand- 
ed charity, and for the hallowed enjoyment of a fond, beautiful, 
and loving domestic association. 

About 1844 Mr. Yerger removed to the city of Jackson, and 
confined his practice mostly to the bar of the high court, where 
he gained his most brilliant professional trophies, the records of 
which bear a testimony to his genius and ability far more com- 
plete and satisfactory than could be wrought by the most gifted 
pen of metaphysical delineation. The calm and sedate quality 
of his mind led him to prefer the discussion of commercial 
questions and those of an equitable nature rather than those 
which spring from the ruder jarrings of society or from crim- 
inal infractions ; yet his learning and tact were admirably adapted 
to all -the duties of an advocate and to the province of criminal 
practice. His defences, into which he entered with all the zeal 
of his nature, were stern barriers to the arm of prosecution, and 
his vindication of the afterwards diBtinguished General Dan. 
Adams, who unfortunately slew his antagonist in a personal con- 
flict in the streets of Vicksburg in 1844, is said to have been a 
masterly specimen of criminal pleading. 

In politics Mr. Yerger was a stanch advocate of the princi- 
ples of the Whig party, and in the campaigns of 1840 and '44 
took an active part in support of its Presidential nominees. But 
he never sought office ; he had no relish for the clash and tur- 
moil of public life, and his devotion to his profession was su- 
perior to any ambition which he might have entertained for po- 
litical preferment. Indeed, of all the affairs of life, his nature 
seemed to have a clear-cut and well-defined shape for the legal 
profession ; to it he devoted his energies, and died only when he 
had achieved all that it could give of victory and of fame. 

His death, which occurred in April, 1860, was attended with 
somewhat remarkable circumstances. He had left Jackson but 
a few days before, buoyant with hope and the vigor of health, 
for a visit to Bolivar County. There he joined in a deer hunt, 



KOGER BAETON. 265 

and, liaving shot a large buck, ran to secure the struggling ani- 
mal, and fell dead upon the carcass from an affection of the heart 
produced bj the excitement and severe exercise of the occasion. 
His death cast the gloom of deep regret over the entire State, 
and left a void in the ranks of the bar which time could conceal 
but never close. 

Mr. Yerger reposed an unqualified faith in the great truths 
of Christianity. He was a devoted communicant and faithful 
member of the church. He had searched the Scriptures, and 
threw the weight of his great intellect in the scale with the wise 
of earth who have found there the promises of eternal life. 



ROGER BARTON. 

This remarkable man and eminent lawyer was born in the 
State of Tennessee, near the present city of Knoxville, on the 
10th of October, 1802. He was the son of Dr. Hugh Barton 
and Mary Shirley Barton, both of whom were natives of Vir- 
ginia. After receiving a good classical education at one of the 
colleges of East Tennessee, he began the study of law at Knox- 
ville, in 1824, under the Hon. AVilliam E. Anderson, and after 
having practised his profession there for several years he re- 
moved to the town of Bolivar, and formed a copartnership with 
Judge Y. D. Barry, a prominent lawyer of that plac«, whose 
daughter Eudora he afterwards married. 

He was soon returned from his adopted county to the Legis- 
lature of Tennessee, and was afterwards selected by that body to 
fill the office of attorney -general, which he conducted with great 
ability, and with a distinguished exhibition of those qualities 
which afterwards rendered him so famous in criminal practice. 

He had thus already acquired an enviable distinction at the 
bar of his native State when, in 1836, attracted by prospects 
more commensurable with his ambition, he emigrated to Missis- 
sippi, and located at Holly Springs, in Marshall County, where 
he formed a copartnership with the Hon. Joseph W. Chalmers. 
Here his remarkable talents and striking characteristics gained 
for him at once both practice and popularity, and at a special 



266 BENCH AND BAE OF MISSISSIPPI. 

election in 1838 lie was chosen to a seat in the Legislature, to 
which he was again elected in 1849, and assumed an influential 
and leading position in that body. 

At the close of the first term of Hon. Jefferson Davis in the 
United States Senate, Mr. Barton was presented and strongly 
urged for that position by the people of the northern portion of 
the State, and which, on account of his known ability and great 
popularity, he would most likely have obtained, had it not been 
for the military glory of Mr. Davis, which rendered his pre- 
ferment always grateful to the people of Mississippi. 

A thorough Jeffersonian in his views of government, Mr. 
Barton was a stanch advocate of State rights, and was prompt 
to vindicate, on all occasions, the honor of his adopted State, 
which was now the object of his pride and the home of his 
strongest affections. Its honor and prosj)erity were the absorb- 
ing themes of his thoughts, and the welfare of its people the 
great passion of his life. He was for more than twenty years 
the most able and influential leader of his party in his section of 
tiie State, and, had he sought office, could have obtained any 
within the gift of his people. 

But second only to his patriotism was the love of his profes- 
sion. In this he had engaged, from the beginning, all the 
powers of his nature, with the fondness of a devotee, not so 
much, however, in respect to its recluse and subtle features as 
its abstract utilities and practical achievements ; for while, by 
the measure of an almost unparalleled success, he was truly a 
great lawyer, his remarkable talents were too self-reliant and 
versatile to submit to the jealous restraints and exacting subser- 
viency necessary for the acquisition of pre-eminent legal pro- 
foundness. Hence his mind was not a mere mosaic of prece- 
dent and memorized cases, in which every blank was a desert of 
mental darkness, but in brilliancy of perception, in the exercise 
of intuitive judgment, and in the masterly preparation and as- 
tute management of his cases, he has had few equals at the 
bar of Mississippi. 

He was brave and magnanimous, and whether in law or poli- 
tics, always struck full at the crest of his adversary. In the 
great civic contests of 1840 and 1841: he nailed his flag to the 



EOGER BAETON. 267 

inast, and the effective broadsides of liis eloquence and loo-ic 
swept the raging sea of politics and left it clear and calm, and 
radiated hy the glare of his genius. 

An eloquent and distinguished contemporary, the Hon. David 
C. Glenn, says of him during this period : " Soul and feeling 
spoke in all he said and did. Wit, radiant and mellow, poured 
as from an exhaustless" fountain ; and his humor, as hroad as that 
•of Dickens and as grotesque as Hogarth's, was never darkened 
by malice or pointed with a sneer, but rejoiced in the sunshine 
of a glorious genius which was all his own, yet ripened and ele- 
vated by an antique and classical cultivation in wdiicli he was 
surpassed by few men of his time. And never did a champion 
of old face every fortune with a ti-uer spirit. Defeat or disaster 
never cast him down. Like the wrestler of old, he rose re- 
freshed by the fall. While his principles were in danger he 
was ever foremost on the battlements of the enemy ; but when 
success crowned his standard, by his own wish Mr. Barton wiis 
ever last and least among the victors. The spoils were not a 
part of his principles, and ambition never led him astray." 

Mr. Barton was always ready to serve his people in any capa- 
city which immediately affected their interest, but invariably de- 
clined all positions of a general or mere honorary character. In 
1S3T, in connection with Governor Vroom of New Jersey, he 
was appointed by the President a member of the commission to 
examine the claims of the Choctaw Indians to contingent reser- 
vations under the 14th article of the treaty of " Dancing Rab- 
bit" Creek, wdiich was a matter of vital importance to the peo- 
ple of the northern counties of Mississippi, and performed the 
difficult and laborious duties involved in this trust with distin- 
guished skill and diligence. 

At the district convention at Pontotoc in 1849, he received 
the nomination of his party for Congress, but happening to be 
present attending the Federal court, then in session there, j\lr. 
Barton proceeded immediately to the hall of the assembly, and 
amid the welcome shouts of congratulatory applause jiromptly 
declined the honor. lie M^as afterwards tendered by President 
Pierce the position of United States consul for the island of 
Cuba, which he also declined. 



268 BENCH AND BAE OF MISSISSIPPI. 

Among the cliief features which achieved for Mr. Barton his 
great success at the bar were, in the first place, his remarkable 
judgment and discrimination in selecting the precise law appli- 
cable to the case in question, and in rejecting the adduction and 
urgency of that which, however plausible, could not stand the 
test of being tidied on and adjusted to the facts. He thoroughly 
studied the history and character of his cases, carefully gathered 
every obtainable fact, and fully contemplated the law arising 
from them. He was cautious and deliberate in assuming his 
ground, and surveyed with care every inch of the field before 
be rushed to the attack or planted his lines of defence. Hence 
there was a fatal precision, a pre-engaging certainty, attending 
the positions he assumed, which no skill or art of sophistry 
could ever shake. 

His logical powers were as intuitive and spontaneous as his 
judgment. He studied and adhered to no fixed rules or con- 
ventional arts of speech. The chain of his thoughts was the 
linked impulses of his own genius, and his incomparable lan- 
guage was but the swaddling- robes in which his ideas sprung clad 
into his mind. His eloquence consisted in a polished simplicity, 
a fascinating candor and earnestness of manner, and a forcible 
originality knit into the closest logic and woven into the richest 
and most striking illustrations. His extemporaneous command 
of language was a rhetorical phenomenon, and his spontaneous 
utterances sparkled with a vigor which premeditation would only 
have dimmed. His oratory was always adaj)ted to the occasion, 
and whether clad in the-purple robes of dignity, draped in the 
circumspect attire of gravity, or decked in the gorgeous colors 
of eloquence, it was equally effective in solemn appeals to the 
understanding and judgment of the court, in the sparkling 
streams of humor with which he beguiled the feelings of the 
jury, and in the gushing floods of satire and invective which he 
poured upon the head of injustice and guilt. 

And again, that which added greatly to his success as a law- 
yer was his uniform placidity and good-nature ; as has been 
said of another, he wielded the club of Hercules wreathed with 
roses. He united the withering sarcasm of Sheridan with the 
amiable temper of Sir Matthew Hale. In his character were 



ROGER BARTON. 269 

blended the rich fancy of Fox, the vehemence of Burke, and the 
courage of Erskine, with the cahn depths of Ilolt and the can- 
dor and self-possession of Pitt. He would, when occasion jus- 
tified, chastise the unfortunate victims of his animadversion with 
an air of gentility that added smart to the excoriations of his 
lash, until, wiithing in the agonies of chagrin, or conscious 
guilt, they would often rush from the court-house, as did the 
clergy of Virginia on one occasion to escape the piercing shafts 
of Patrick Henry. 

But his thouglits and his feelings were equally poised under 
the control of his tutored judgment and polished sense of pro- 
priety ; if the former were never confused by complexity, the 
latter were never disconcerted by circumstances. It was related 
by Judge Trotter that " on one occasion Mr. Barton was en- 
gaged in a case of which the gist was fraud, and he endeavored 
to establish the mala fides of the transaction by inductions from 
a variety of concurring circumstances. The party against whom 
he appeared was a veteran in such practices, and it was almost im- 
possible to reach him. But no web of perfidy was ever so artfully 
woven that the Major could not unravel its threads and expose 
it in its naked depravity. The celebrated John Randolph, in 
his palmiest days, never revelled more in the grateful task, or 
lashed the guilty wretch with more success. But on this occa- 
sion his adversary, long trained to such encounters, withstood 
the Major's fire for some time like a salamander. But, roused at 
last by one of his most bitter sarcasms, he sprung to his feet as 
if touched by a galv^anic battery, and boldly facing the Major 
ordered him to retract what he had just said. Upon which the 
Major, dropping, the thread of his remarks, exclaimed, with the 
utmost nonchalance, ' If you are so impatient, sir, to make a 
speech that you cannot wait until I am through, I will certainly 
give way.' The man was surprised and confused, and the gen- 
eral roar of laughter had a more quieting effect upon him than 
if the Major had knocked him down with his fist," 

A striking feature of the oratory of Mr. Barton, and one 
which peculiarly characterized that of Patrick Henry, was his 
bold and comprehensive aphorisms, which, couched sometimes 
in a timely uttered sentence or phrase, would often overthrow, 



270 BENCH AND BAR OF MISSISSIPPI. 

at one stroke, the most elaborate argument of an opponent. 
Judge Trotter related also an incident of this character. 
"Major Barton," said he, "was prosecuting the claim of a 
poor man for compensation for personal services. The oppos- 
ing counsel denounced the Major's client as a worthless bankrupt, 
who paid no debt himself whilst he was seeking to enforce an 
unjust claim against a man who had rather befriended than in- 
jured him. To this the Major replied by simply asking this 
question : ' Is it, then, seriously proposed that because the 
plaintiff is poor he shall be kept so forever ? ' " 

But it was on the criminal side of the law that Mr. Barton 
achieved his greatest and pre-eminent distinction. 

It is said of Lord Mansfield that while he was attorney-gen- 
eral he never lost a Crown case, for the reason that he took care 
that the Crown should never become a party to a cause when its 
rights were not a matter of certainty ; and it was said of Mr. 
Barton that, while he was engaged for more than twenty years 
in a more extensive criminal practice than any lawyer in Missis- 
sippi, yet during that time he never failed in a criminal de- 
fence, because he always succeeded, by his adroit management, 
in securing both the most favorable action of the court and the 
good-will and sympathy of the jury. He seized upon every 
vantage-ground, and lost none which he once occupied, and it 
required but little time for him to so weave his mesmeric 
charms around the minds of the jury that they became imbued 
with his feelings and saw everything through his glasses. 

Sir Richard Steele said of Lord Chief Justice Holt : " He 
always sat in triumph over, and in contempt of, vice ; he never 
searched for it, or spared it when it came before him. At the 
same time he could see through the hypocrisy and disguise of 
those who have no pretence to virtue themselves but by their 
severity to the vicious." This trait was prominent in „ the 
character of Mr. Barton. He was quick to read the hearts of 
men, to interpret their motives, and to detect the springs of 
human action ; and he knew just where and when and how- 
to touch the propitious chord which was to awaken sentiments 
and views harmonious to his own. 

He was among the few eminent lawyers of whom it may be 



EOGEE BARTON. 271 

said that an overflowing hnmor and an overweening propensity 
for Indicrous anecdote and badinage never impaired the most 
imph'cit faith in his sincerity, nor weakened the force of In's 
most snbtle and gravest^ arguments ; but, on the other hand he 
possessed the liappy faculty of blending the force of his wit 
with the power of his wnsdom. It was not with him as Dr. 
Johnson says it was with Shakespeare, an irresistible fondness 
for a mere " quibble" which allured him from the " dignity and 
profundity of his disquisitions," nor the " Cleopatra for Avhich 
he lost the world and was content to lose it,'-' but it was the 
aroma which sprung from the blossoms of his genius and the 
flowers of his philanthropy. 

With such a happy blending and exact adjustment of pre- 
eminent qualities, the career of Mr. Barton flashes like a meteor 
across the annals of Mississippi jurisprudence ; and so varied 
and versatile were the qualities of his genius that it may be 
safely affirmed that, had he applied himself with an assiduity 
commensurate with his powers and professional adaptation, he 
would have taken his stand among the flrst lawyers of the 
world. 

Mr. Barton possessed a singularly kind and generous heart. 
His sympathy for the poor and distressed was deep and easily 
aroused, and invariabl}' called forth his best services in their 
behalf. His generosity often forbade justice to himself, and he 
often endured all the inconveniences of that which Juvenal 
calls " res angusta doinV rather than press the collection of his 
just dues. Toward the young members of the profession he 
maintained a fatherly attitude, and was ever ready to aid them 
wath deeds of kindness, with words of encouragement, and with 
inspirations of hope. Nothing short of an attempted undue ad- 
vantage, or an exhibition of a manifest lack of principle, ever 
caused him to deviate from a high- wrought professional cour- 
tesy, or to turn his back upon a new beginner. 

He w'as a man of the most exuberant spii-its, viewed every 
circumstance in the most generous light, and presented the 
bright side of the world to all who came in contact with him. 
His dignity was the offspring of unswerving rectitude, and his 
simplicity of manners the product of a clear conscience and 



272 BENCH AND BAR OF MISSISSIPPI. 

o-uileless disposition. To his country he was a pillar of patriot- 
ism, to his friends the living statue of a Pythian fidelity, and to 
his family the model of generosity, affection, and love ; and 
that such a man should have enjoyed Jhe warm and universal 
meed of friendship and esteem is but the reward of those who 
practise the hallowed precepts of that golden rule proclaimed by 
Heaven and dictated by the noblest sentiments of humanity. 
He died of acute rheumatism on the 4th of March, 1855, in 
the vigor of his manhood and intellect. 



JACOB S. YERGER. 

Of all the varied characters of men there is no one whose 
traits are wrought to a higher standard of excellence, and whose 
composition is more devoid of the l)etty weaknesses as well as 
the grosser foibles of mankind, than that of a truly learned, 
just, and upright judge. His functions are among the most 
sacred and elevated that pertain to the affairs of humanity, and 
he feels the weight of that responsibility which incurs from a 
higher seat the same judgment which he has meted to others. 

His mind is at once the sun and the moon of the law. It 
sheds its beams upon its obscure features, illumines without len- 
ifying its stern aspect, and in turn reflects back its light upon 
the face of society, penetrates the dark confines of human de- 
pravity, and presents a beacon for the guidance of rectitude. 

His heart is a tablet upon which are inscribed in mingled 
characters the rigid outlines of justice, the stern mandates of a 
jealous rule, and the smiling pictures of benevolence and phi- 
lanthropy. He knows no passion but his devotion to duty ; he 
cherishes no motive but the attainment of justice ; he fears no 
displeasure but the reprimands of conscience, and seeks no ap- 
plause but the benediction of right. 

His conscience vibrates at the tenderest touch of doubt, and 
utters its strains of hallowed dictation at the slio-htest breath of 
appealing virtue. His judgment stays to catch the notes of its 
approbation, and his actions leap forth at its bidding, as did the 
charmed rocks from their mountain-beds at the ravishing strains 




^■'^S * V Augustus »»■*»»•' 




JACOB S. YEKGER. 273 

of Orpheus. It is there alone that he seeks for justirication and 
reward, and there finds liimself the sanctified recipient of the 
blessing vouchsafed to the faithful servant. He holds to the 
sentiment of Persius, " iVec te qucBsiveris extra,'''' and whicli 
Drjden has liappily translated : 

" The conscience is the test of every mind ; 
Seek not thyself, without thyself, to find." 

In this rare category of exalted virtues I have no hesitancy in 
including those of the distinguished gentleman whose character 
forms the subject of this sketch. 

Jacob Shall Yerger was born in the town of Greensburg, 
Westmoreland County, Pennsylvania, on the 11th of January, 
1810, and in 1816 removed with his father's family to Leba- 
non, Tennessee, where he was reared and educated. He was 
one of eleven children, and in consequence of the poverty of 
his father his educational advantages were sparse and limited. 
Full, however, of the workings of an innate genius and the am- 
bition of conscious talents, on attaining his majority he elected 
the profession of law, and began its study in the oftice of his 
brother, George S. Yerger. Having, after a thorough prepara- 
tion, obtained his license to practice, he located in the city of 
Nashville, and entered at once upon liis prosperous and brill- 
iant career. In this exacting field his talents were soon recog- 
nized, and he rose rapidly to the front rank of his profession. 
But in the midst of an extending practice and the most flatter- 
ing prospects, he was enchanted with the flush times which then 
dwelt upon the banks of the great Father of Waters, and in the 
winter of 1837 he removed to Mississippi and established his 
office in Vicksburg. 

This bar was at that time adorned with brilliant gem'us, 
and was justly regarded as one of the mosr distinguished in 
the South. It was there that the eloquence and tact of 
Prentiss, the logic and skill of Holt, and the astuteness and legal 
acumen of Guion, mingled in tides of genius which none but 
the highest order of talent could stem. But Mr. Yerger was 
fully equal to the task before him and to the expectations 
which his reputation engendered, and his ability soon gushed 
18 



274 BENCH AND BAE OF MISSISSIPPI. 

forth in streams that rivalled the overwhelming intellectual 
torrents of his new associates, and characterized him as one of 
the most profound lawyers at the bar of Mississippi. His prac- 
tice in the Federal courts, in the High Court of Errors and Ap- 
peals, and in the Superior Court of Chancery, was perhaps the 
largest and most lucrative in the State, and which he retained 
until his election to the circuit bench in 1855. 

Judge Yerger possessed in the concrete all the eminent qual- 
ities wLicli enter into the composition of a great lawyer and 
great man, while in the abstract the characterizing features of 
his greatness were strongly asserted in a judgment cast in the 
mould of a deep and accurate comprehension, in a perception 
whetted to the sharpest edge of intuition, in a power of logic 
wrought of the most ingenious skill and the soundest reason, in a 
memory which embraced the scope of his observation, and in an 
ardor of application and a devotion to duty over which no 
circumstance or consideration could exercise a diverting sway. 
His cajiacity for close discriminations and subtle distinctions 
placed his positions in the management of a case beyond the 
reach and coping power of ordinary intellects, while the apt 
communication of his ideas, the purity and simplicity of his 
diction, and the pathos of his convictions, unfolded the most 
abstruse doctrines and lurking points to the view and understand- 
ing of common -sense. His position towards his clients was that 
of a faithful counsellor and friend. He deceived them with no 
apparitions of false hopes, and with no inducements to unjust 
and fi'uitless litigation ; but, candid and conscientious in all his 
dealings with them, he engaged their confidence, and they 
trusted him with an apostolic faith. 

As a judge he was the Cato of integrity and the Aristides of 
the Mississippi bench. He was a wise and faithful expositor of 
law, a stern and unswerving vindicator of justice — an uj^right 
arbiter before whom the weak and the oppressed found an am- 
ple and sure redress of their wrongs. He possessed the un- 
bounded confidence of the bar and of the people, and his deci- 
sions were received as emanations from the foimtains of wisdom 
and justice. His addresses to the grand jury were models of 
legal exposition and moral commentary, and the dignity and de- 



JACOB S. YERGER. 275 

corum which he maintained in his courts were elevating to the 
bar, admonishing to the people, and an honor to judicature. 
At the expiration of his first term as circuit judge of the then 
third judicial district of Mississippi, Judge Yerger was re-elected, 
and continued in that office to the time of his death ; and the 
ermine which he laid aside at the summons of tl:at inexorable 
sheriff of Heaven, was as pure and spotless as the shroud that 
enfolded his honored remains. 

In every sphere of life Judge Yerger maintained the same 
high character which embellished his career upon the bench. 
He was a true patriot, and though widely differing from a ma- 
jority of his fellow-citizens on many vital issues of his day, so 
lofty was his integrity, so firm were his convictions, and so sin- 
cere his motives, that they wrenched respect from the fiercest 
opposition. He was in politics an active and devoted Whig, 
and his services to that party both in Tennessee and in Missis- 
sippi claimed the recognition of marked fidelity and efficiency. 
He was twice elected to represent the city of Vicksburg in the 
Legislature of the State, and while a member of that body in 
1841 moved the rejection of the message of Governor McNutt, 
which suggested the policy of repudiation, as being unworthy 
of consideration and an affront to the Legislature ; and so vehe- 
ment and able was his opposition that the message was received 
by a majority of only four votes, notwithstanding the popular 
majority known to exist in favor of the measure. 

He was convinced that the payment of the bonds of the 
Union and Planters' Banks was legally binding upon the State, 
and advocated their liquidation upon matter of principle arising 
from honest convictions. As chairman of the committee ap- 
pointed for that purpose, he reported to the Legislature the cir- 
cumstances and conditions under which those bonds were issued 
and sold, and introduced a resolution declaratory of their valid- 
ity and binding effect upon the State. The adoption of both 
the report and resolution was bitterly opposed by some of the 
ablest men in the State, but, mainly through his exertions, was 
carried by a considerable majority. 

At this same session he introduced, and succeeded in procuring 
its passage, a bill for funding the indebtedness of the State, the 



276 BENCH AND BAE OF MISSISSIPPI. 

Wisdom of which was exemplified in the gradual recall of a large 
amount of outstanding warrants from a depreciated circulation, 
and consequently in the speedy restoral of the credit of the 
State. 

In 1845 Mr. Yerger removed to the county of "Washington, 
and was returned to the Legislature from that county. In 1852 
he was sent as a delegate to the Whig Convention at Baltimore, 
and on his return was made one of the electors at large for the 
State. In the canvass which followed, his vigor and eloquence 
added greatly to the strength of his party, and increased his 
reputation for consummate ability. 

On taking his seat upon the bench. Judge Yerger discarded 
all his partisan enthusiasm, and carefully avoided all participa- 
tion in politics ; but when the question of secession began, in 
1860, to assume a serious aspect, he threw all his ability and in- 
fluence in opposition to that measure. He considered it un- 
necessary, impolitic, and ruinous, and in the March convention 
of 1861 stemmed almost alone the revolutionary tide that swept 
over that body. While he felt deeply the wrongs of his people, 
he loved the Union, and was willing to rest satisfied with the 
obtaining of further constitutional guarantees of equality within 
its fold. But when the die was cast and the fatal consequences 
thronged upon the country, he sent three of his sons to answer 
the call of his State in 1861 for troops, and afterwards, so soon 
as he became of proper age, buckled on the armor of a fourth, 
who was killed in battle in 1864. 

In 1865 Judge Yerger was unanimously elected as a delegate 
from his county to the convention for reorganizing the State gov- 
ernment, and was chosen president of that body, over which he 
presided in a manner dignified, able, and satisfactory. 

But if his official character was adorned with ethical traits 
which engaged the affection and esteem of the bar and of his 
political associates, his private life was no less embellished with 
the charms of social accomplishments. His conversation was 
edifying and entertaining, his manners affable and attractive, 
and he possessed a rich vein of polished humor, which gave him 
a fondness for ludicrous narrative and an aptness in the delinea- 
tion of eccentricity. He was consequently popular among all 



ALBEET G. BEOWN. 277 

classes of people, and to such an extent that on his re-election 
to the bench in 1861, he is said to have lacked but two votes of 
being the unanimous choice of the district. He was the friend 
of the w^idow and the orphan, and his charity was large and 
open-handed. He delighted in extending a helping hand to 
struggling youth, and was exceedingly kind and generous in his 
demeanor towards the young members of the bar. 

Judge Yerger was married in 1833 to Miss Mary H. Bowen, 
of Smith County, Tennessee, and had nine children, only two of 
whom are now living. He was a tender husband, a kind 
father, a true friend, and a dutiful citizen. He died of conges- 
tion of the brain, in Vicksburg, on the 14th of July, 1867, and 
left a deep and universal regret for the loss of one whose life 
was spent in usefulness and ended in purity. 



ALBEET G. BEOWN. 

Albert Gallatin Brown was born in Chester District, South 
Carolina, on the 31st day of May, 1813, but in 1823 his fa- 
ther moved his family to Mississippi and established his home in 
the county of Copiah, He was a plain, honest, and industri- 
ous planter, and confined himself to the practical views of life 
and to the study of good husbandry ; consequently his son was 
early indoctrinated in the principles of domestic economy and 
in the just and correct notion of the realities and verities of life, 
which became the mould of his future character. He was early 
inured to those habits of honest toil which brought him into 
sympathy with the great mass of struggling humaTiity, and he 
cherished a life-long eifort for its elevation. 

Having obtained sucIT education as his circumstances and the 
common schools of the country at that period afforded, young 
Brown entered the law oflfice of Hon. Ephraim G. Peyton, 
afterwards Chief Justice of Mississippi, and before he had 
reached his majority was admitted to the bar and became the 
partner of his distinguished preceptor. He was therefore im- 
mediately engaged in an extensive practice, to which he devoted 
his energies and talents with such vigor, fidelity, and skill, as at- 



278 BENCH AND BAR OF MISSISSIPPI. 

tracted popular notice and admiration, and stamped bis earlj 
manhood with unmistakable indications of future eminence. 
His great poj)ularity and rapidly growing distinction at the bar 
soon, however, evoked a summons to another sphere, and in 
1836 he was chosen to rejjresent the county of Copiah in the 
Legislature ; but, having caused some dissatisfaction among a 
portion of his constituency by his vote for the admission of 
members from the counties lately formed out of the territory 
ceded by the Chickasaw and Choctaw Indians, he resigned his 
seat in 1837, announced himself a candidate for re-election, and 
was triumphantly returned. 

While a member of the Legislature Mr. Brown participated 
actively and influentially in the discussion of all important ques- 
tions of the period, and distinguished himself particularly by the 
interest which he took in matters of finance, and by the ability 
which he displayed during his second term, as chairman of the 
Committee on Banking, in his recommendations regarding that 
system. 

In 1839 he was nominated and elected by the Democratic 
party to a seat in the National Congress, where, in conjunction 
with Hon. Jacob Thompson, he served the interest of his party 
and section with a vigor and efficiency that justified the confi- 
dence and expectations of his constituents and gave him repute 
throughout the country. 

At the expiration of his term, in 1841, he declined a renomi- 
nation for Congress, and became a candidate for the office of 
circuit judge in his district, to which he was elected by a large 
majority. His career upon the bench was characterized by a 
conscientious uprightness and an unswerving integrity, and by a 
dispatch which was greatl}'- promotive to the ends of justice and 
conducive to the interest of society. His comprehensive views, 
uncommon firmness of mind, strong powers of reason, intuitive 
discernment and love of justice, rendered him eminently fitted 
for the duties of a judge, and he brought to the bench the same 
personal qualities which had endeared him to the people as a 
lawyer, as a politician, and as a man. 

In 1843, when he had just ascended his thirtieth year, he was 
elected Governor of Mississippi. During the canvass of that 



ALBERT U. BROAVN. 279 

period the public mind was greatly agitated upon the (]ncstion 
of paying or rejecting the bonds of the Union Bank. Judge 
Brown was in favor of the repudiation of these bonds, while his 
Whig opponent, Hon. George R. Clayton, contended for their 
validity and binding power upon the faith of the State, because 
their issuance was an act authorized by a majority of the people. 
But on refei-ring to this cpiestion. Governor Brown in his in- 
augural address said that " to set up the will of a majority as 
being superior to the Constitution of the State as a measure of 
power was virtually making one acknowledged wrong a pretext 
for committing a still more grievous wrong." 

The administration of Governor Brown was distinguished for 
the many important measures which he recommended, and their 
beneticiality to the general interest of the State. He was 
warmly enlisted in the cause of education, and in his first message 
to the Legislature said : 

'' As intimately connected with the future glory and happi- 
ness of our State, the subject of education, more perhaps than 
any other, challenges our deepest consideration. Where is the 
seminary fund ? is a question often asked, but never satisfactorily 
answered. To members of the Legislature let me say, our com- 
mon constituents will expect of us some account of this munifi- 
cent fund, and a speedy application of it to the great purpose for 
which it has been set apart. The day which witnesses the com- 
pletion of this magnificent temple of learning will be a brilliant 
one in the annals of Mississippi. It will be the dawning of a 
new era in the history of letters, and as such will be hailed with 
joy by the friends of science throughout the nation. 

" Our State will not be appreciated at home nor sufficiently 
honored abroad until her educated youth shall acknowledge as 
their alma mater this or some other reputable college within 
our own limits. The practice of sending our youth abroad 
to be educated ought to be discouraged. The only effectual 
means of doing so is to rear up colleges and academies at home 
which may successfully compete with those of other States." 

The impetus which these sentiments and recommendations 
gave to Ihe cause of education resulted during his administra- 
tion in the establishment and endowment of the State University 



280 BENCH AND BAE OF MISSISSIPPI. 

at Oxford, an institution which, if it has not reached the stand- 
ard of his wishes, owes its foundation and adv^antages largely to 
his genius and patriotism. 

In 1845 Governor Brown was re-elected, and during his sec- 
ond term as Governor, in 1847, appointed Hon. Jefferson Davis 
as United States Senator, to fill the vacancy occasioned by the 
death of Hon. Jesse Speight, and which was approved by the 
unanimous election of Mr. Davis by the Legislatui-e in 1848. 

In 1847, before the expiration of his second gubernatorial 
term. Governor Brown was again elected to a seat in the 
National House of Representatives, and was re-elected in 1849. 
In 1853 he was elected to a seat in the United States Senate, 
which he held by re-election until 1861, when he resigned, in 
company with the other Southern Senators, to share the fortunes 
of his people and the new Confederacy. 

It would not comport with the province of this work to fol- 
low commentingly this remarkable man through his long and 
brilliant political career. Its features belong to the brightest 
pages of our national history, and should be studied in full for 
the great lessons of principle, of patriotism, and of true great- 
ness, moral, social, and political, which it teaches. It resem- 
bles the glow of some bi-illiant star steadfastly pursuing its 
course and shedding its benign and untamishable beams amid 
the wreck of constellations and the Phaetonic confusion of the 
firmament. 

Governor Brown saw no remedy for the difficulties that beset 
the pathway of his people but in the throes of revolution and 
secession, and he considered the election of Mr. Lincoln to the 
Presidency upon a purely sectional platform as the final and 
consummating act of justification. With this honest conviction 
he returned to his constituency. He had used his best efforts to 
stay the solemn alternative, but when his State had seceded and 
he saw the skeleton hand of war rolling up the Federal Consti- 
tution and unfolding in its stead the banners of subjugation and 
vengeance, he promptly girded himself for the contest, and 
raised a military company known as the " Brown Rebels," of 
which he was made the captain. He was no stranger to the 
drill and discipline of a soldier : he had in early manhood mani- 



ALBERT G. BEOWN. 281 

fested an interest in the military orc:anization of his State, and 
had been made a brigadier-general of its militia. Ilis company- 
was assigned to the Eighteenth Mississippi Regiment, com- 
manded by Colonel E. B. Burt, and was among the first troops 
sent to Virginia. There he participated in the battles of Bull 
Run and Manassas, and soon afterwards at Leesburg, where 
Colonel Burt was killed. 

But notwithstanding that his services in the field were as 
conspicuous for ardor and gallantry as his civil services were 
brilliant and eminent, his people felt the need of his able and 
faithful counsel, and on the convening of the Legislature in 
December, 1861, he was elected to the Senate of the Confeder- 
ate States, and took a leading position among the eminent gen- 
tlemen of that brilliant assembly. 

At the termination of the war, ex-Governor Brown retired to 
the privacy and seclusion of his farm, but, like Cincinnatiis, he 
was ever ready to answer the call of his people, and devoted 
himself in his retirement to plans and efforts to ameliorate their 
sufferings, and to secure some remnant of hope from the apparent 
wreck of every prospect. These meditations and purposes led 
him to assume positions in advance of his people, and which 
they were not yet prepared to occupy ; but time vindicated his 
wisdom and prescience, and proved the grand old patriot to be 
as true in adversity to the best interest of his State as he had 
been in the brightest days of its prosperity. 

Through all the varied spheres of his remarkable life — three 
times in the Legislature, three times in Congress, three times a 
national Senator, twice the Governor of Mississippi, a brigadier- 
general of militia, a captain in the Confederate army — Govern- 
or Brown occupied the same exalted position in the esteem of 
his associates and in the confidence and affection of the people. 
No stain marked his pathway, and no blot dimmed a line of his 
record. Yet, notwithstanding the splendor of his unbroken 
success, he seems to have had really no fondness for the glitter- 
ing honors which were poured upon him, and soon after the 
war he wrote to a young friend as follows : 

" True, as you say, I had many offices. Indeed I may say 
that I never knew defeat in any of my aspirations. And it is 



282 BENCH AND BAR OF MISSISSIPPI. 

just because I had success which people call wonderful that I 
feel competent to administer a word of caution to the young 
men of this generation. My young friend, do not be deceived 
by the glitter of office. I am now past my three-score years, 
and am fast travelling into the ten. I have held almost every 
office in the gift of the people, and I can truly say with the 
preacher, ' It is all vanity and vexation of spirit.' Looking 
back over a long and I hope not unsuccessful life, I can say 
with a clear conscience, my greatest regret is that I have ever 
made a political speech or held an office. There is a fascination 
in office which beguiles man, but be assured, my young friend, 
it is the fascination of a serpent ; or, to change the figure, it is 
the ignis fatuus which coaxes you on to inevitable ruin. I 
speak of that which I know. If my young friends will be gov- 
erned by my advice, I have this to say, after all my successes as 
a public man, now when my head is blossoming for the grave : 
I feel that it would have been better for me if I had followed 
the occupation of my father and been a farmer." 

The domestic life of ex-Governor Brown was all that the 
sweets of conjugal affection could render it. During his first 
session in Congress, in 1841, he was married to Miss Boberta 
Young, of Alexandria, a lady of rare and fascinating accomplish- 
ments, who administered the affairs of his household with all 
the felicity of intelligence and amiability, and who still survives 
to cherish his memory and observe the reverence in which it is 
held by his countrymen. His death occurred on the 12th of 
June, 1880, and was attended by the following circumstances : 

He had ridden on the evening of that day to the village of 
Terry, a short distance from his residence, to procure the at- 
tendance of a physician for Mrs. Brown, who was suffering from 
the effects of chills, and, after having spent a short time in attend- 
ing to business and in making social calls, he returned, accom- 
panied by Dr. Rawles, his family physician. On reaching his 
residence he requested the doctor to walk in, while he would 
ride to the pond to water his horse. In about twenty minutes 
from that time the horse was observed returning riderless, and 
search having been made immediately, the ex-Governor was found 
lying dead in the pond, and in shallow water, with his face 



PATKICK W. TOMPKINS. 283 

downward. Dr. Rawles repaired immediately to the scene, 
and upon examfnation pronounced that his death M'as occa- 
sioned by a sudden attack of apoplexy or congestion, as there 
were none of the usual symptoms of death by drowning. 

His remains were conveyed to Jackson on the next day, where 
they were to be interred, and were laid in state beneath the 
rotunda of the Capitol. Here they received every token of 
honor and respect which the sorrow and sympathy of a whole 
people could offer, and on the next day the distinguished gen- 
tlemen who bore his pall to the grave and tossed with solemn 
reverence the cold clods upon his coffin, consummated the last 
act which the honors of this world could perform for the mor- 
tal parts of greatness. But, turning away from these, we find 
him still living — living in the good which he has accomplished, 
in the grandeur of his record, in the glorious example which he 
has left, as a legacy to coming generations, in the prosperity of 
his country, and in the affections of his people. His name will 
gather the tribute of honor as it passes down through the gen- 
erations, and so long as there is a Mississippi an, a heart will 
quicken with reverence for the memory of Albert G. Prowr. 



PATRICK W. TOMPKINS. 

- There is no trait of character which confers so much benefit 
upon its possessor — which lops away so many brambles, levels 
down so many hillocks, and surmounts so many obstacles of life 
— as that which we call amiability. 

Power may reach the limits of its control ; force may blunt 
its weapons against the tough hide of obstinacy ; reason may 
exhaust in vain its logic upon the dull ear of perversity, and 
the unction of suasion may congeal before the cold threshold of 
misanthropy ; but good-nature wields a soothing influence over 
the most obdurate circumstance, and binds the sternest fate a 
captive to its charms. 

Notwithstanding its discountenance by the mock dignity of 
asceticism and the pharisaical gravity of the self-righteous, a 
merry humor rarely fails to find a kindling reciprocation in the 



284 BENCH AND BAE OF MISSISSIPPI. 

« 

bosom of the most embittered misanthrope. It is indeed the 
most efficacious antidote to that more prevalent spirit which not 
only magnifies the real ills of life, but which even soars away 
upon the wings of excursion in search, not of the olive-leaf of 
hope, but of the rising peaks of sorrows which it knows not of. 

The hilarious man dispenses a contagious cheerfulness which 
penetrates and often dispels the most settled gloom. He weaves 
the garlands of pleasantry of the very tliorns of life, and hangs 
a rose upon every thistle. Such a man is truly a promoter of 
philanthropy ; and such was the character of the subject of this 
sketch. 

Patrick W. Tompkins was a native of Kentucky, but was of 
Irish parentage, and possessed in a remarkable degree the wit 
and humor so characteristic of that good-natured race. His 
early education was limited, but his sprightly intellect and con- 
scious talents led him at an early age to the study of the law. 
He was first admitted to the bar of his native State, where he 
practised for several years with a success which only ability, 
energy, and assiduous application, could achieve. 

He removed to Mississippi about the year 1838, a period 
when so many afterwards distinguished gentlemen first made 
their appearance in this field of professional eminence, and here 
he entered upon a cai-eer of much brilliancy. He was particularly 
noted for his successful criminal practice, and was engaged in 
many of the most important cases of that character. His gen- 
eral knowledge of the law was extensive, and his familiarity 
with precedent sufficiently ample to meet the exigencies of any 
ordinary occasion ; while his quick sagacity, incisive argumenta- 
tion, and ready retort, greatly promoted the irresistible effect of 
his energetic and careful i)reparation. 

His management of a case was astute and ingenious, and so 
conducted as to secure every advantage which the circumstances 
presented and the law allowed. But his main forte lay in his 
art of captivating the jury, an effect which his sparkling wit 
and abundant store of apt, illustrative, and pleasing anecdote 
rarely failed to accomplish. In vivacity of humor, graceful 
ridicule, and sparkling repartee, he was perhaps more like Cur- 
ran than any other member of the Mississippi bar. Yet his 



PATRICK W. TOMPKINS. 285 

wit was not so elevated and polished as that of Ciirran. Where, 
indeed, in the history of the Forum could we find another Cur- 
ran ? From whom besides him could we, as a matter of course, 
expect the reply he made to Lord Robinson, when the latter 
threatened to commit him for contempt of court ? "If your 
lordship should commit me, both your lordship and myself 
may reflect, that I will not be the worst thing your lordship 
has ever committed."'' And his lordship was so comjsletely 
overwhelmed with the wit and boldness of the reply that, so far 
from committing him, he called upon the other members of 
the bar to restrain Mr. Curran within the rules. 

Yet Mr. Tompkins possessed much of the same spirit and of 
the same vivacity of retort. As a political debater he had few 
superiors, and entertained a decided fondness for the contests 
and excitement of the hustings, which, together with his un- 
bounded personal popularity, finally constrained him to turn his 
attention to politics. 

In 1847 he was elected to a seat in Congress, and his career 
there was both brilliant and honorable, during which he en- 
gaged in all of the important discussions of the period. lie 
was a stanch suj^porter of Mr. Polk's administration, and 
vigorously exposed and derided the grounds of opposition, on 
the part of the New England States, to the Mexican War. 

Mr. Tompkins was a man of congenial and warm-hearted dis- 
position, sincerely philanthropic in sentiment, and a patriot of 
the purest type, and while he remained in Mississippi enjoyed 
a professional, political, and personal popularity of which but 
few men can boast. On the acquisition of California he re- 
moved to that State, and died a few years afterwards. 



286 BENCH AND BAR OF MISSISSIPPI. 

HENRY S. FOOTE. 

Henry Stewart Foote was born in Fauquier County, Virginia, 
on the 20th of September, 1800. His educational advantages were 
good, and he graduated at Washington College, Lexington, Vir- 
ginia, in 1819, was admitted to the bar in 1822, and in 1824 
emigrated to Tuscumbia, Alabama, where he edited a Demo- 
cratic newspaper. In 1826 he removed to Jackson, Missis- 
sippi, and formed a copartnership for the practice of law with 
Anderson Hutchinson. His position at the bar soon became 
prominent, and he enjoyed an extensive practice, but his taste 
and turn of mind soon led him to an active participation in 
politics, and so great w^as his popularity as a political leader that 
in 1817 he was elected to a seat in the United States Senate, 
and was made chairman of the Committee on Foreign Relations. 
flis vigor of mind, political tact, and ready powers of debate, 
caused him to assume an active and conspicuous position in re- 
gard to all the important questions of that period, and particu- 
larly in respect to the Compromise measures of 1850. In 1851, 
in a hotly contested election, he was chosen Governor of Missis- 
sippi over the Hon. Jefferson Davis. 

Governor Foote was a tlioroughly aggressive politician. He 
advanced his views boldly, and advocated them with a vigor and 
ardor that excited the admiration of the people and gained the 
respect of his opponents. He has the character, however, of 
having been fickle in his politics— a feature which sprung, no 
doubt, from the traits already observed. As Governor of Mis- 
sissippi his administration was marked by vigorous efforts for the 
advancement of the material prosperity of the State, and gave 
satisfaction to the people. 

In 1854 he removed to California, but in 1858 returned to 
Mississippi and resumed the practice of law in Vicksburg. In 
the Southern Convention, at Knoxville, in 1859, he took strong 
grounds for the preservation of the Union. He was bitterly 
opposed to the policy of secession, and when the question began 
to assume a serious aspect in Mississippi, he quit the "State and 
resided in Tennessee, but when that State also espoused the 
secession cause he gave adhesion to it, and was chosen as one 



HENRY S. FOOTE. 28T 

of tlie Tennessee delegation in the Confederate Congress, where 
his career was chiefly noted for his hostility to the Confederate 
President, and finally for his opposition to the continuance of 
the war. He was in favor of capitulating upon the terms 
offered by Mr. Lincoln in 1863 and 1864. After the war he 
became identified with the administration of General Grant, and 
was appointed superintendent of the United States Mint at 
New Orleans, which ofiice he held to the time of his death, 
which occurred at his home in Nashville, on the 20th of May, 
1880. 

Governor Foote possessed a fiery and vehement temper, and 
was engaged while in Mississippi in several duels, two of which 
were with the distinguished Sergeant S. Prentiss. He was, 
however, when uot agitated by the excitement of opposition, 
exceedingly mild in his manners, and w\as an accomplished dev- 
otee of the social circle, but he was at all times inclined to be 
argumentative, and on the stump was often fierce in ridicule and 
invective. He was at one time very popular with his party in 
Mississippi, and few men ever exercised more influence over 
jjopular assemblies than he at one time wielded. 

As a lawyer Governor Foote was learned and astute ; he was 
apt and alert in discernment, quick to perceive, and logical in 
argumentation. His tenacious disposition rendered him ex- 
ceedingly loath to accept defeat, and he was in all respects a 
formidable antagonist. He was engaged in many of the most 
important criminal cases that occurred in the State during the 
time of his practice at the bar of Mississippi, and ac(]uitted hiin- 
self with ability and remarkable success. His main professional 
strength lay in his capacity for captivating the minds of the 
jury : his methodical arrangement of facts, his forcible illustra- 
tions, earnestness of manner, boldness of assault, and complacent 
though scathing rejoinder and ready repartee, gained for him 
first the attention and then the favor of the jury. The bold- 
ness of his assumptions and the apparent depth of his convic- 
tions were too startling for the question of ordinary minds, and 
they yielded assent to that which they felt incompetent to dis- 
pute. 

Bat it was on the hustings that Governor Foote achieved 



288 BENCH AND BAR OF MISSISSIPPI. 

his greatest triumphs. As a popular orator he had but few 
superiors, and gathered applause in every phase of his political 
idiosyncrasy. He was familiar with human nature, and he knew 
how to present successfully the colors of plausibility to the mind 
of ignorance until it mistook illustration for comprehension and 
sympathy for conviction. 

Governor Foote was author of several works, entitled respec- 
tively, " Texas and the Texans," " Sylla and Charybdis," and 
" The Bench and Bar of the South-West. " While his style is 
by no means void of elegance, neither of these works has met 
with the favor which the reputation of their author proclaimed 
for them. Like that of many great orators, his pen failed to 
reproduce the inspiration that fell from his lips. But the influ- 
ence which he long wielded over the destinies of Mississippi 
and the sheen which his talents added to its jurisprudence 
inscribe his name indelibly and lustrously upon the pages of its 
history. 



JOHN H. MARTIN. 

The subject of this sketch was a native of Virginia, and was 
born in the County of Albemarle in the year 1790. He was 
a descendant of a Huguenot family which came to the colony, 
perhaps in the number which flocked thither at the dispersion 
of that sect by the revocation of the Edict of Nantes. He was 
a soldier in the army of General Jackson during the Indian 
wars, and was promoted to a majority for conspicuous services. 
He was also in command of Tennessee troops at the battle of 
New Orleans. Soon after the termination of the war he began 
the practice of law at GlasgoM^, Kentucky, where he acquired 
prominence ; but in 1826 he removed to Nashville, Tennessee, 
and became associated with Hon. John Bell and Judge Henry 
A. Crabb. From this distinguished connection he no doubt 
received the conflrmation of that lofty estimate of the dignity 
of his profession and the sanctity of the duties of an advocate, 
that calm self-possession, and refined and high-bred courtesy, 
which afterwards characterized his professional ethics. 



JOHN H. MARTIN. 289 

When Judge Crabb was promoted to the supreme bencli and 
Mr. Bell elected to Congress, Mr. Martin became the partner 
of George S. Yerger, and this firm prepared the volume of 
Tennessee Reports styled Martin & Yerger's, an elegant ana- 
lytical presentation of the law, whose syllabi and compcndiums 
assert the ability of the autliors. Mr. Martin afterwards held 
for a short time, under the appointment of the Governor, the 
position of circuit judge. In 1836 he removed to Vicksburg, 
Mississippi, and formed a copartnership with Judge Beverly 
Hughes. When this firm was dissolved he practised some time 
alone, and then became associated with Charles Scott, afterwards 
Chancellor of the State. 

Judge Martin was a well-read lawyer, conspicuous for his ap- 
plication and devotion to his profession, and noted for his in- 
tegrity and fidelity. He was a man of modest and amiable 
deportment, bland and courteous in his bearing ; and while he 
made no effort in his oratory towards ornation or display, his 
logical powers were prominent, and he was a clear, earnest, 
and persuasive speaker. His success at the bar was due more 
to the depth of his knowledge, his exact prejjaration, and con- 
scientious dealing with the interest of his clients, than to any 
brilliant superficiality. He was a strict Presbyterian in religion 
and morals, and was at the time of his death an elder in that 
church. He died of yellow fever at Vicksburg in 1841. 



19 



CHAPTER IX. 



THE BAR— EMINENT LAWYERS— 1832-1868. 

WILLIAM S. BARRY GEORGE R. CLAYTON DAVID C. GLENN WALKER 

BROOKE JAMES C. MITCHELL. 

In his famous funeral oration pronounced in honor of those 
who fell in the Samian war, Pericles endeavored in an elegant 
manner to impress the devoted patriotism of the dead, as an ex- 
ample of glory, upon the living ; that their deaths were a joint 
and. hallowed offering upon the altars of their country, and that 
while, collectively, they gave to it their lives ; individually, 
they received that renown which never grows old, and the most 
distinguished tomb they could have, that in which their glory 
is left behind them, the subject of everlasting record ; tliat for 
illustrious men the whole earth is the sepulchre ; and not only 
do the inscriptions upon columns in their owm country point it 
out, but in all lands there dwells an unwritten, inheritable 
memorial of the heart, more durable than any material monu- 
ment. 

There is not an instance in the history of this world in which 
any class of individuals exhibited a loftier patriotism, a more 
glowing pride, or a more splendid gallantry, than that disj)laye(i 
during the civil war by the members of the Mississippi bar ; 
and the same is true in regard to the conduct of the profession 
throughout the South. JSTo sooner had the first cloud-caps of 
the comino; stru^'tjle heaved in view, than their briefs were left 
unargued, their books were laid away, tlieir offices were closed, 
and with drawn swords they were found in every town, in 
every village, and in every hamlet marshalling their countrymen 
in the array of battle, organizing companies and regiments, en- 
couraging the brave and shaming the timid, leading the advaiic- 



292 BENCH AND BAR OF MISSISSIPPI. 

ing files, swelling the ranks, or heading the hurrying columns 
of the Confederacy. Everywhere and in all positions they met 
the issue with a determination and devotion that challenge 
comparison in the annals of patriotism. 

Many of them had exhausted their pens and their powers of 
speech upon the hustings and in the halls of legislation, in argu- 
ment of the great questions which were now certified by the 
voice of honor and of patriotism to the arbitrament of war. 
Before this tribunal they were prepared to vindicate and seal 
with their blood the scroll of principles which they had advo- 
cated upon the platform ; and if the mortality list is any indica- 
tion of bravery in battle, surely the claim of the bar to that 
quality is paramount, if vouchsafed in proportion to its losses. 

No trade, no occupation, no class of persons, suffered so much 
as the legal pr ession. So great were its casualties that popu- 
lous counties were left without an attorney, and on the resump- 
tion of the courts whole districts could not furnish lawyers 
sufficient to conduct the ordinary legal business and litigation. 
Their lights had gone out amid the clouds of war like the ex- 
piring sparks of a meteoric shower. The forums that were 
wont to echo to their eloquence were silent and dumb, while in 
many instances, a few old men alone remained to afford exam- 
ple and pilotage to the untutored youths who were ushered into 
the places of the fallen. Among the latter were our Blyth, 
Barksdale, Harrison, Eogers, Miller, Baldwin, Aldridge, Autry' 
Leigh— men who sunk the lawyer in the patriot, the patriot in 
the soldier, and the soldier in the martyr to the liberties of 
their country. 




2ns*?„. 



8 VAuguBtasE.o'bm:flY 



A^/^Cc'a^,^-^^ ^ A^^ 



WILLIAM S. BARRY. 295 

WILLIAM S. BARRY. 

The distinguished subject of this memoir was born in the then 
village of Cohimbus, on the 10th day of December, 1821. His 
early educational advantages were good, and after the usual 
academical preparation, he was sent to Yale College, and gradu- 
ated with distinction at that institution about the year 1845. On 
his return to Columbus, he entered, as a student of law, the 
office of Messrs. Harrison & Harris, and soon attracted atten- 
tion by the earnestness of his application, the courtesy of his 
manners, the polished fluency of his language, and by the re- 
markable eloquence which he displayed in a debating society 
composed of the best speakers and most intelligent men of the 
town. 

On obtaining his license, Mr. Barry began the practice of law 
in copartnership with Judge J. S. Bennett, and soon manifested 
a brilliancy of talent and a rare aptitude for his profession 
which furnished flattering indications and promise of future 
eminence, but, becoming weary of professional monotony, he 
retired from the bar in 1847 and settled as a planter on his 
farm in Oktibbeha County. Here, however, his talents soon 
commanded notice, and in 1849 he was elected from that county 
to a seat in the lower House of the State Legislature, and was 
re-elected in 1851. While in the Legislature Mr. Barry partici- 
pated actively in the promotion of all the leading measures of 
his party, and in the discussion of the exciting questions of that 
period, in which his manly bearing and oratorical powers com- 
manded much respect and influence. 

In 1852 he removed to that portion of Sunflower County 
afterwards included in the county of Leflore, and in 1853 w;us 
elected to a seat in the j^ational House of Representatives. 
While in Congress Mr. Barry was noted for his alertness and 
penetration, and for his skill and eloquence in debate. He 
took strong grounds in opposition to the party denominated 
" Know-Nothings,'- and in his speech on "'Civil and Religious 
Toleration," delivered in the House of Representatives on the 
18th of December, 1854, he exposed the policy and principles of 
that party in a lucid, searching, and effectual manner. He 



296 BENCH AN^D BAR OF MISSISSIPPI. 

contended that a secret political association was dangerous to 
the rights of the people and to the stability of the government, 
a.nd that a person might as well owe allegiance to a foi^eign 
sovereign, and he ready to obey his commands, as assume obli- 
gations to any society of his countrymen which might place him 
in collision with his own Government : that the most beautiful 
and soothing effect of civilization, the loveliest influences of 
our own institutions, has been to mollify prejudice against those 
outside our borders, and to bring the whole family of nations, 
as it loere, into a common brotherhood. 

At the expiration of his term in Congress, Mr. Barrj declined 
a re-election and resumed the practice of his profession in 
Columbus, in copartnership with Thomas Christian, Esq. This 
firm continued with an increasing command of business until 
1855, when the political admirers of Mr. Barry would no lono-er 
dispense with his abilities in the arena of politics, and he was 
again induced to come forth from the retirement of professional 
life ; and in the midst of the fierce political contest of that 
year he became the leader of the Democratic party in his sec- 
tion of the State. He was again elected to the Legislature, 
and was made speaker of the House, over which he presided 
with an energy and ability that fully comported with his repu- 
tation. 

From this time Mr. Barry became absorbed in the contem- 
plation of the great question of disunion, whose rapid approach 
his sagacity even now foresaw ; and as it rolled its huge pro- 
portions to the brow of the political horizon, he became more 
and more convinced that, though beast it might be, it was far 
preferable to that monstrum horrendum,, informe, ingens, of 
Northern fanaticism, whose ravages threatened the destruction 
of every Southern interest and Southern right ; he therefore 
boldly and firmly embraced the alternative, and on taking his 
seat as a delegate from the county of Lowndes in the Mississippi 
Secession Convention of 1861, he was immediately chosen the 
president of that body. In this convention were assembled, 
par excellence, the wisest and best men of the State, and the 
lofty bearing and sublime attitude maintained by Mr. Barry as 
its presiding officer gave a dignity, steadfastness, and solemnity, 



WILLIAM S. BARRY. 297 

to its proceedings, full worthy of the momentous event. So 
impressed was he with the importance of the occasion and the 
great object wliich had been achieved, it is said, that it was 
with the most powerful manifestations of the mingled feelings 
that throbbed and swayed within his bosom, with faltering 
voice and tearful eye, that he announced the decision of the 
convention, that Mississippi was no longer a member of the 
Federal Union, but a Sovereign and Independent State. It is 
said that he never again used the pen with which he signed the 
Ordinance of Secession, but carefully laid it away with its lialf- 
delivered ink, and left it to his only son, a namesake, with the 
injunction that it should be preserved as an heirloom in the 

family. 

Mr. Barry was not a disunionist jper se, and had used his best 
endeavors to stay the storm, so long as he considered an effort 
to do so consisteiit with manhood and honor. If, as a member 
of the Charleston Convention of 1860, he seceded with others 
from that l)ody, it was for the purpose of procuring the nomi- 
nation of a person for the presidency who would possess the 
confidence of the Southern people, and whose character would 
o-ive assurances that would allay their excitement and discon- 
tent ; and with this view he participated actively in the nonuna- 
tion of Breckenridge and Lane in the subsequent convention at 

Baltiinore. 

Mr. Barry was chosen by the Mississippi Convention as one 
of the seven delegates to the convention of the Southern States 
at Montgomery, and was afterwards elected a member of the 
Provisional Congress of the Confederate States, but as soon as 
the war was fairly begun he conceived that his duty was in tlie 
field, and having obtained authority from President Davis to 
raise a regiment for the war, he resigned his seat, returned to 
Mississippi, and in the spring of 1862 organized and mustered into 
service the 35th regiment of Mississippi infantry. This regiment 
was led by Colonel Barry through some of the bloodiest scenes 
of the great struggle, and he was regarded as one of the best 
volunteer officers in the Confederate Army. His regiment took 
an active part in the conflicts with the army of General Grant 
in Mississippi and in the defence of Vicksburg, where it was 



298 BENCH AND BAR OF MISSISSIPPI. 

surrendered. It subsequently shared in the Georgia campaign 
and participated in the battles around Atlanta. In the begin- 
ning of the expedition of General Hood, Col. Barrj was wound- 
ed at Altoona, and rejoined his regiment in the vicinity of 
Mobile, where he was captured in the assault on Blakely on the 
9th of April, 1865. 

As an officer Col. Barry was characterized by an unswerving 
devotion to duty, a courage which knew no odds or disj)arity, a 
coolness which no danger could perturb, and by a stern justice 
blended with kindness. He was greatly admired and beloved 
by his men, and they would have followed him into the mouths 
of the guns of Balaldava. 

Returning from the war. Col, Barry retired to the seclusion 
of his home, and on being asked by a friend in wliat manner 
he employed his time, he replied that as far as he could, he 
was living in a state of vacuity, that the present was all gloom 
and there was no promise in the future. " My thinking in the 
past," said he, "has not been profitable—my hopes for my 
country have all been blasted, and as far as I can, I will quit 
thinking and for a while lead a negative existence." 

His naturally feeble constitution, which his heroic nature had 
sustained through the hardships and trials of war, became bur- 
dened with a despondency which induced a rapid decline of his 
health, and soon his friends beheld with silent sorrow and com- 
miseration the ravages of the fatal malady that had fastened its 
inexorable grip upon his emaciated frame ; yet he maintained 
to the last that independence of spirit and sublime sentiment of 
patriotism which had been the ruling passion of his life. In 
answer to a sohcitation made by the authorities of Yale College 
a short time before his death for a biographical report, he de- 
nominated himself "originally, a Democrat, then a States 
Rights man, during the war a conscientious rebel (so called), 
and at that time a pardoned reconstructed Johnson man." 
lie reported himself "practising law in Columbus, trying to 
gather from the wreck which the war made of all our fortunes 
whatever may be left, and to make a support for my family by 
my profession. As to religion, by education a Presbyterian ; 
by taste, an Episcopalian ; in practice, nothing." 



WILLIAM S. BARRY. 299 

It lias been said that all great passions are born in solitude, 
that they are tamed and degraded by the common intercourse 
of society, and utterly lost and extinguished in public com- 
panies, crowds, and assemblies ; but here we have a brilliant 
lio-ht, kindled in the blaze of the forum, in the halls of legisla- 

to ' ^ 

tion, and in the smoke of battle, waning away and extinguish- 
ing itself in the damp of seclusion — the noblest passions that ever 
swayed the heart of mortal mouldering in the rust of inaction 
and the canker of despondency. Col. Barry saw no hope for 
his country, and that dread reflection obscured every light and 
cast' the gloom of darkness over his existence. He died in 
Columbus, at the residence of his sister, Mrs. J. D. Bradford, 
on the 29th of January, 1868. 

Col. Barry possessed a superior order of talents, which ren- 
dered him at an early age an ornament to his profession and the 
idol of his party. His combined elegance of manner and elo- 
quence of diction rendered him one of the most accomplished 
and popular orators of his day. It is said that his speech at 
Montiromery in answer to the call of the people on the day 
of the inauguration of President Davis, was more happily con- 
ceived, more eloquently delivered, and more highly applauded, 
than that of any of the distinguished gentlemen who spoke on 
that inspiring occasion. As a lawyer lie possessed all the quali- 
ties of a successful advocate ; full of sensational and perceptive 
energy, his comprehension was rapid and his retort ready, while 
his logical powers were adapted to the most subtle and abstruse 
reasoning. His imagery was copious and fascinating, and hit. 
art of suasion conquered the sternest obstinacy and soothed into 
sympathy the bitterest rancor of prejudice. While his know- 
ledge of the law was drawn perhaps more from the hastily and 
promiscuously gathered crops of genius, than from the more 
solid stores of profound research and experience, so potent 
were the combined powers of his mind that he seemed to 
possess, by intuition, resources adequate to any emergency. 
His strong and lively imagination, fine taste, faultless expres- 
sion, and elegant vein of humor, rendered him an interesting 
companion, and a favorite of society— a circumstance wliich, so 
far as it allured him from the dull routine of professional life, 



300 BENCH AND BAK OF MISSISSIPPI. 

and from the monotonous path of professional distinction, to the 
dazzhnjjj arena of politics, was not conducive to that eminence 
which his genius had fashioned for him at the bar. 

Col. Barry was unswerving in liis adherence to tlie line of his 
duty, and whether amid the carnage of the sword, the encounters 
of parliamentary debate, in the conflicts of the forum, or in 
the concerns of private life, he permitted no circumstance to 
intervene, and no obstacle to stand unassaulted between him 
and the performance of a moral obligation. 

He possessed a sublime reverence for justice and truth, and 
abhorred duplicity and evasion in whatsoever garb they might be 
arrayed, or whatever may have been the plea that invoked 
them. His judgment was formed calmly and deliberately, and 
he was always ready to defend his positions by honest argument 
and logical illustration. While his disposition was exceedingly 
amiable, he was scathing in his invectives against injustice, 
fierce in his denunciation of wrong, and eloquent in the defence 
and advocacy of riglit. 

Col. Barry was a warm friend, and a devoted husband and 
father. He was married on the 20th of December, 1851, to 
Miss Sally Fearn, daughter of- Dr. Thomas Fearn, of Hunts- 
ville, Alabama. This lady is yet living, and is entitled to more 
than an ordinary share of the credit and esteem due to the 
amiable, the accomplished, and the faithful wife and widowed 
mother. Her maternal devotion awakened in her bosom an 
energy and determination which have woven the web of pros- 
perity from the weeds of desolate widowhood. 

Col. Barry was affectionate and sincere in his attachments, 
and could see no fault in his friends, lie was the soul of honor, 
and knew no feeling of envy or sentiment of jealousy. He 
delighted in aiding his younger brothers of the bar, and main- 
tained towards all a frank and generous attitude. His kindness 
of heart and consideration for the comfort of his friends were 
beautifully exemplified on the niglit of his death. The}' knew 
that his end M^as nigh, and many of them had gathered in at- 
tendance on the final scene, and a few minutes before the fatal 
hour arrived, he turned to his sister, Mrs. Bradford, of whom 
he was the dying guest, and asked what friends were in the 



GEOEGE R. CLAYTON. 301 

sitting-room. On being told their names he charged her to ex- 
press to each of them his grateful appreciation of their kindness 
in calling to see him at such an hour, and to convey to them 
the highest assurance of his friendshij) and good-will. He then 
said : 

" Sister, those friends Avill remain during the night, and jou 
must not forget about midnight to provide them with some re- 
freshments. Go out and direct that coffee be ready for them at 
that hour." But before the hour arrived for this last appoint- 
ed feast of friendship, the spirit of William S. Barry had taken 
its flight, and his cup remained unsipped upon the hallowed 
board. But down to the end of time his name will glitter in 
the annals of Mississippi in glaring association alike with the 
brightest days of its prosperity and the darkest hours of its ad- 
versity ; in the former, he was an honor to its glorv, and iu the 
latter, the glory of its gloom. 



GEORGE R. CLAYTON. 

There is a republican heraldry more glorious than all the glit- 
tering insignia and emblazoned armorials that ever gauged the 
pride of the grandest aristocracy — a heritage which can neither 
be devised as an appurtenance of domain, nor bequeathed as an 
incident of the proudest title of nobility. It is the legacy of 
ancestral emulation — the spirit which in ancient Rome devoted 
whole families, through generations, to the service of the 
Republic, and which impelled the third Brutus to emulate the 
glory of the first. 

This legacy brings iu its train the treasures of example ; the 
invaluable stores of refined training, and the wealth of hallowed 
inspirations. He who heirs this inheritance possesses every 
motive to the strife for eminence, the strongest incentives to 
virtuous and vigorous action, and is guided by the most imperi- 
ous influences that conduce to the expansion and development 
of the highest moral and intellectual character ; the virtues of 
his ancestors form the beacons of his pathway, while a tutored 
ambition bids him onward. Such were some of the influences 



302 BENCH AND BAE OF MISSISSIPPI. 

wliich moulded the character of liim who forms the subject of 
this sketch. 

George R. Clayton was born in Athens, Georgia, on the 6th 
of October, 1808, and was the oldest son of Hon. Augustine S. 
Clayton and Julia Clayton, nee Carnes. He graduated at the 
University of Georgia in 1827, and read law in the office of his 
father, who was one of the many able lawyers, distinguished 
jurists, and eminent representatives in Congress, of whom 
Georgia can so justly and proudly boast. George began the 
practice of law in his native town, and his natural ability and 
thorough professional training enabled him very soon to attain 
a position of prominence at the bar ; but the attention which 
the spn'ghtliness of his genius had so early attracted was not to 
permit its confinement to the dull routine of a law office, and 
its seclusion from public affaii's. 

In 1834 he was elected to a seat in the Legislature of Georgia, 
and participated with activity and prominence in all matters of 
general legislation, and particularly distinguished himself by 
the remarkable ability and zeal he displayed in the advocacy of 
a petition made to the Legislature for the pardon of a minister 
of the gospel, the Rev, Mr. Johnston, who had been convicted 
on circumstantial evidence of the murder, in his own house, of a 
young girl who was his ward. Here was a theme and occasion 
well calculated to kindle the glowing benevolence of his nature, 
and elicit the brightest coruscations of his intellect ; and he 
nobly availed himself of the opportunity. After a thorough in- 
vestigation of the case, Mr. Clayton became so profoundly con- 
vinced of the innocence of the applicant for legislative clem- 
ency, that he threw all the impulses of his heart and powers 
of his genius into the struggle for the rescue of the unhappy 
man from the terrible fate that awaited him ; and in this noble 
effort achieved a reputation throughout the State for pre-eminent 
qualities, and for an intellectual ability rarely attained by one 
of his years. 

About this time Mr. Clayton was married to Ann R. Harris, 
oldest daughter of Gen. Jephtha V. Harris, who for more than 
forty years practised law in the Northern Circuit of Georgia, 
with distinguished success ; and if it be true that the germs of 



GEORGE E. CLAYTON. 303 

excellence pulsate in inheritable veins, this lady brought to him 
a dowry kindred to that heritage described in the beginning of 
this sketch. 

In 1836 Mr. Clayton removed with his family to Mississippi, 
and established his residence in the town of Columbus, where 
he continued the practice of law, and took his position among 
the most eminent of the profession ; but, while he was a 
devoted barrister, he entertained firm and vigorous opinions re- 
garding matters of public interest, and still listened to the 
voice of political ambition. During the very next year after 
his advent to Mississippi, we find him engaging in a fierce dis- 
cussion, at Columbus, with Alexander G. McNutt, and acquit- 
ting himself with distinction in his polemical contest with that 
veteran politician, who was then canvassing the State for gov- 
ernor upon the Van Buren platform. 

At the election following this canvass Major McNutt was 
elected, and during his term as governor promulgated those 
doctrines which finally resulted in repudiation. To this princi- 
ple Mr. Clayton was bitterly hostile, and in 1843 engaged in a 
canvass for governor against Hon. Albert G. Brown, in which 
the main issue between the opposing candidates was repudiation 
or payment on the part of the State of the bonds of the Union 
Bank, but the policy of repudiation was embraced by a majority 
of the people, and Mr. Brown was elected. 

As the writer has frequently had occasion to refer to this 
question, which carried men into office and hurled others out, it 
may not be improper to present here a brief history of its char- 
acter, and the influences which were brought to bear upoti the 
people in its support- 
On the 21st day of January, 1837, an institution wai? incor- 
porated by an act of the Legislature of Mississippi, under the 
style and title of " The Mississippi Union Bank," with a capital 
of $15,500,000, which was to be raised by a loan to be obtained by 
the Board of Managers appointed by the Legislature, and com- 
posed of three persons from each county in the Statu, who were 
to open books of subscription at their respective county seats, 
until the appointment of a Board of Directors should intervene ; 
and in order to facilitate this ban the faith of the State was 



304 BENCH AND BAK OF MISSISSIPPI. 

pledged, both for the security of the capital and interest, which 
was to be promptly paid by the bank as the bonds should 
severally fall due. 

The Constitution required that any act pledging the credit 
of the State should, in order to be valid, be re-enacted by the 
succeeding Legislature. This was done, and at the same time 
a supplemental act w^as passed by the subsequent Legislature in 
reo-arH to the incorporation of subscribers, which was embodied 
in the original act, and somewhat modified its provisions. 
Under this blended enactment of legality and invalidity the 
larger portion of the bonds were sold, and hence the origin or 
rather the basis of the question, which has assumed various at- 
titudes in its progress. 

The repudiators contended that the supplemental act passed 
by the second Legislature so altered the provisions of the 
original act as to require the sanction of a third Legislature to 
give validity to any part of the proceedings ; while the bond- 
payers urged that as the supplemental act confirmed, and did 
not alter that portion of the original act which created the State 
liability, the pledge was valid and binding ; and this was the 
position maintained by the High Court, 

Many and varied were the influences brought to bear upon 
the people in the fierce and prolonged contests between the 
respective adherents of these policies. It came to pass that the 
payment of these bonds by the State would have incurred a 
heavy tax upon all kinds of property, and a ruinous burden 
upon the prosperity of the State. This was a powerful incen- 
tive to popular indifference, if not to positive antagonism to 
their payment ; and so far the repudiators, in addition to the 
charge of illegality, rested their position upon a law of nature. 
But even broader grounds were in time assumed, and it was de- 
clared that one generation could not bind another. This prin- 
ciple derives force from a celebrated letter of Mr. Jefferson to 
Mr. Madison, written from Paris in 1789 ; of which the follow- 
ing extracts are introduced, as well for the sake of the import- 
ance and novelty of the arguments as on account of their appli- 
cation to the question of Mississippi Pepudiation, especially at 
this day. 



GEOEGE R. CLAYTON. 305 

Mr. Jefferson says : " Tlie question whether one generation 
of men has tlie right to bind another, seems never to have been 
started either on this or our side of the water. Yet it is a 
question of such consequence as not only to merit decision, but 
phice also among the fundamental principles of our govern- 
ment. The course of reflection in which we are immei'sed here 
on the elementary principles of society, has presented this ques- 
tion to my mind ; and that no such obligation can be so trans- 
mitted, I think very capable of proof. I set out on this ground, 
which I suppose to be self-evident, that the earth helonga in 
usvfruct to the living / that the dead have neither powers nor 
rights over it. The portion occupied by any individual ceases 
to be his when he himself ceases to be, and reverts to society, 
unless conventional laws have directed its future use. But no 
one takes it by natural right. Then no man can, by natural 
right, oblige the lands he occupied, or the persons who suc- 
ceed him in that occupation, to the payment of debts, contracted 
by him. 

" What is true of every member of the society individually, is 
true of them all collectively ; since the rights of the whole can 
be no more than the sum of the rights of the individuals. To 
keep our ideas clear when applying them to a multitude, let u^ 
sujjpose a whole generation of men to be born on the same day, 
to attain mature age on the same day, and to die on the same 
day, leaving a succeeding generation in the moment of attain- 
ing their mature age all together. Each successive generation 
would in this way come and go off the stage at a fixed moment, 
as individuals do now. Then I say, the earth belongs to each 
of these generations during its course, fully and in its own 
right. For if the first could charge it with a debt, then the 
earth would belong to the dead, and not to the living genera- 
tion. Then no generation can contract debts greater than can 
be paid during the course of its own existence." 

Yet, notwithstanding tlie ingenuity of his argument, Mr. 
Jefferson seemed to ignore the fact that, if there can be sucli 
things as demise and inheritance, even though they be i)urely 
conventional, they may also be coupled with conventional con- 
ditions, and the enjoyment in usufruct by the heir made to de- 



306 BENCH AND BAK OF MISSISSIPPI. 

pend upon the payment of the debts contracted by the ancestor, 
perhaps for the very rights which he has transmitted, and 
upon the simple ground that a thing is bound for the price of 
its purchase. It is not to be understood, however, from these 
remarks that the writer undertakes to decide upon the merits of 
this controversy on the question of the bonds ; for, if the 
" vox populi " theory be correct, the will of Heaven has long 
since settled the whole matter. 

Those who favored the payment of the bonds contended, 
first, for their legality, and then for the honor and credit of the 
State, which they conceived should be preserved at all events. 
Some abhorred the principle of public rej)udiation to such an 
extent as to dispose them to waive all doubts of their legality, 
in favor of their payment ; and among these was the subject of 
this sketch. The stanch position of Mr. Clayton in opposition 
to repudiation debarred him, with many other men of eminence, 
from the preferments which his abilities merited, and which his 
popularity otherwise would have achieved. 

He was a warm advocate of States rights, favored separation 
as the only mode of preserving them, and was a member of the 
convention that withdrew the State of Mississippi from the 
Union, and took an active and vigorous part in all the proceed- 
ings of secession, the right and justification of which he main- 
tained to the day of his death. 

Having lost his wife some years before, he was married in 
1861 to Miss Laura Johnston, daughter of Gabriel Johnston, 
Esq., of Mobile, a lady of many noble qualities and accomplish- 
ments. 

At the close of the war his aged mother was still living, and 
80 soon as the affairs of the country would permit, he hastened 
to look after her welfare ; and while on a visit to her with his 
family, he was stricken with disease of the heart, and died in 
Athens, Georgia, in 1867, in the house of his mother and the 
home of his childhood. 

As a lawyer, Mr. Clayton was th.orough, accurate, and vigor- 
ous ; conspicuous for his ready grasp and tenacity of tenable 
positions, and for his ability to fasten conviction upon the 
minds of both judges and jurors. This was due to his masterly 



DAYID C. GLENN. 307 

knowledge of law, his brilliant logical powers, and his polislied 
arts of suasion. His probity and integrity commanded uni- 
versal confidence, while his amiable and courteous bearing'- en- 
gaged the most affectionate esteem of his brothers of the bar. 

As a man his prominent characteristics were an uncompromis- 
ing morality, a warm benevolence, and an attractive amiability, 
which were constantly displayed in every phase and condition 
of his life. He was from early manhood a member of the 
Methodist Episcopal Church, and was not ashamed to bear wit- 
ness to the merits of religion and the eflficacy of the cross. In 
all the relations of life Mr. Clayton was cherished and admired, 
and was pointed out by his fellow-citizens as a man upright in 
purpose, meek in spirit, pure in heart, circumspect in walk, 
and in every way worthy of imitation. 



DAYID C. GLElSTs". 

David Chalmers Glenn was born in the State of North Caro- 
lina about the year 1824, but, having lost his father, he was 
brought to Mississippi when a mere infant, and, at an early age, 
was placed in the law office of his uncle, Hon. J. W. Chalmers, 
who was then the partner of Roger Barton at Holly Springs. 
His early educational advantages were very limited, and he en- 
joyed, for the most part, only such as were afforded in a busy 
law office. But his ambition stimulated an application Avhicli, 
together with his rare natural endowments, soon enabled him to 
surmount all untowardness of circumstances, and, in 1842, when 
but eighteen years of age, he was admitted to the bar under 
omens of a propitious future. He had, however, no s(»oner 
achieved his entrance upon a successful career at the bar than, 
impelle'd by his ardent patriotism and fiery spirit, he embraced 
a warm interest in the political questions of the day, and, in 
1844, entered the exciting canvass of that period, a young ]»ut 
brilliant champion of the Democratic cause. 

His political speeches during the campaign attracted much at- 
tention and were highly applauded ; indeed, his able inipeacli- 
ment of the conduct of some of the Whig leaders, and his nnan- 
20 



308 BENCH AND BAE OF MISSISSIPPI. 

swerable arraignment of some of the measures of that party, dis- 
played powers which designated him as the future attorney- 
general of the State. 

In the fall of 1844, he removed to Jackson, where he soon at- 
tained to an extensive practice, and assumed his position as 
one of the most eloquent, energetic, and brilliant advocates he- 
fore the bar of the High Court. 

In 1848, he again felt himself called upon to enter the j)oliti- 
cal field in support of the national nominees of his party, the 
principles of which he cherished with partisan devotion, and 
whose interest he considered as paramount to all other claims 
upon his talents. In this campaign he acquired additional rep- 
utation for political acumen, for brilliant logic, and for a superb 
and thrilling eloquence, which made him the favorite and pride 
of his party. 

In 1849 he was chosen, by a large majority, attorney-general 
of the State, and acquitted himself in that office with such 
marked ability and satisfactory performance that he was re- 
elected, and even strongly urged to accept a third term, which 
he, however, declined, and, at the expiration of his second term 
as attorney- general, removed to Harrison County and took up 
his residence upon the sea-shore, where the buifetings of the 
pent waves were symbolic of the proud heavings of his own 
hampered spirit. But his retirement and choice of abode were 
not made with the spirit that dictated the message of the Gre- 
cian misanthrope. He mused no thought like this : 

" Come not to me again : but say to Athens, 
Timon hath made his everlasting mansion 
Upon the beached verge of the salt flood, 
Whom once a day with his embossed froth 
The turbulent surge shall cover." 

Col. Glenn was ever ready to respond to the call of duty, 
and when the campaign of 1860 marshalled its ominous clouds 
along the political horizon, he came forth from " the beached 
verge of the salt flood*' and his eloquent voice swelled from the 
capital of the State to its circumference. He was a member of 
the Charleston Convention, and mingled his thrilbng strains with 
the eloquence of "William L. Yancey. He was also a member of 



t 



DAVID C. GLENN. 309 

the Mississippi Convention of 1861, which passed tlie ordinance 
of secession, of which he wag a strenuous advocate, and was chair- 
man of the committee on the formation of a Southern Confeder- 
acy. He had bitterly opposed acquiescence in tlie compromise 
measures of 1850 ; and the circumstances attending tlie admis- 
sion of CaHfornia into the Union convinced him that secession 
was the only alternative for the South. And it is certain that, 
if such a policy was to prevail, then was the time for its adop- 
tion. There was then no organized revolutionary party at the 
North, prepared to destroy the government and drench the con- 
tinent in blood in the interest of fanaticism, and, if the South 
Carolina doctrine of co-operation had then been embraced, the 
country would, in all probability, have escaped the woes which 
afterwards befell it. 

As a lawyer, the character of Col. Grlenn needs no other 
eulogy than that proclaimed by his efficiency as attorney-general 
of Mississippi. He was a thorough lawyer, a brilliant logician, 
and a most eloquent advocate. He possessed in a high degree 
that lactea vhertas of diction which, while it flowed in placid 
streams or dashing torrents as the theme and occasion demanded, 
yet bore upon its surface the cream of thought and sentiment — 
that supreme excellence of oratory which, while it flashes with 
the ornaments of elocution, is yet characterized by " quot verba, 
tot pondera." 

He was truly a high-spirited, generous, and magnam'mous 
man ; as patriotic as Cincinnatus or Eegulus, as courteous as 
Chesterfield, and as chivalrous as the Chevalier Bayard. But 
no effort of mine could more eloquently describe his characteris- 
tics than they are set forth in the following tribute from the 
bar of the High Court of Errors and Appeals, and in the touching 
and pathetic remarks of Hon. T. J. Wharton on presenting tlie 
resolutions to the court. To these I am happy to defer all fur- 
ther efforts to do justice to the character of my subject. 

At a meeting of the members of the bar of the High Court of 
Errors and Appeals, on the occasion of the announcement of the 
death of Hon. D. C. Glenn, on motion of W. P. Harris, lion. 
E. S. Fisher was called to the chair, and Samuel Livingston ap- 
pointed secretary. 



310 BE^CH AND BAR OF MISSISSIPPI. 

The object of the meeting having been explained, on motion, 
the chair appointed T. J. Wharton, W. P. Harris, H. W. Wal- 
ter, S. J. Gholson, and J. T. Harrison, a committee to prepare 
and report resolutions expressive of the feelings of the meet- 
ing ; and thereupon the meeting adjourned to Saturday, Janu- 
ary 9tli. 

On Saturday, January 9, 1869, the meeting was called to 
order, and Gen. W. S. Featherston, in the absence of Hon. E. 
H. Fisher, took the chair, when Hon. T. J. Wharton, chair- 
man of the committee, on motion, reported the following reso- 
lutions regarding the death of Hon. D. C. Glenn, which were 
unanimously adopted : 

The bar of Mississippi is again called upon to mourn the loss 
of one of its most distinguished members. The melancholy in- 
telligence has reached us that the spirit of the gifted and chival- 
ric David Chalmers Glenn, who was for many years the distin- 
guished attorney-general of the State, has returned to the God 
who gave it, and all that was mortal of him has been consigned 
to the grave, there to repose until the resurrection morn ; we, 
his friends and brothers, assembled from different portions of 
the State, have met to pay a last tribute of respect to his mem- 
ory, and to mingle our tears of sympathy over his untimely fall. 
To attest our sense of the loss the State has sustained, we 
resolve : 

1. That, in common with all classes, the bar of Mississippi 
have received with profound sensibility the announcement of 
the death of the Hon. David Chalmers Glenn, for many years 
an eminent member of the profession, and attorney-general of 
the State. 

2. That we tender to the family and relations of the deceased 
our sincere condolence in the melancholy dispensation of 
Divine Providence which has been visited upon them, and the 
State, in the death of one so beloved and honored. 

3. That the foregoing preamble and resolutions be presented 
to the High Court of Errors and Appeals, with a request that they 
be spread upon the minutes, and that the secretary furnish a 
copy to the family of the deceased, and also one to " The Clar- 
ion" for publication. 



DAVID C. GLENK 311 

On motion of H. H. Chalmers, the chairman of the commit- 
tee was requested to present tlic foregoing resolutions to the 
High Court of Errors and Appeals, and request that they be en- 
tered upon the minutes ; and thereupon, after being addressed 
by William Yerger, Esq., the meeting adjourned. 

On presenting these resolutions to the High Court, Hon. T. .1. 
Wharton delivered the following eloquent eulogy upon the char- 
acter of the deceased, which was published at the time by the 
request of the members of the bar : 

" May it please the Court : At a meeting of the members of 
the bar, held in tliis chamber this morning, resolutions were 
adopted which, as chairman of the committee reporting them, I 
have the honor to submit, with the request that they be spread 
upon your minutes. I beg the indulgence of your honors, if I 
preface the reading of them with a few remarks which I trust 
may not be deemed inaj^propriate. It might seem superfluous, if 
not indeed presumptuous in me to utter a woi'd after the very 
eloquent tribute which was paid to the memory of the deceased 
by the gentleman, Hon. C. E. Hooker, who announced to the 
court on Wednesday last the melancholy event which has occa- 
sioned the action of the bar. The apology I offer is, that for a 
period of nearly a quarter of a century, an intimacy, both per- 
sonal and professional, existed between the deceased and myself, 
which was never interrupted for a moment. I was his immedi- 
ate successor in the office of attorney-general of the State. In 
tliat, as in every position and relation of life, I was the reci])i- 
ent of his confidence and friendship. To those not so well ac- 
quainted with him, what 1 shall say will probably appear fuli-ome 
and extravagant ; but to all who knew and appreciated him 1 
confidently appeal. 

" David Clialmers Glenn was a remarkable man. God had 
vouchsafed to him endowments rarely bestowed upon our race. 
He made his impress upon all with whom he came in contact. 
There was a magnetism about him, both chamiiug and irresist- 
ible. 

" He was beloved and honored in life, as he is now mourned 
in death, by all classes and professions of our citizens. The 



312 BENCH AND BAR OF MISSISSIPPI. 

memory of sucli men should not be allowed to jierisli with what 
is mortal in their nature. It is the sacred duty of the people, 
nay, of the commonwealth, to cherish with vestal fidelity the 
memories and the deeds of their illustrious dead. It is the 
achievements, the lives, the characters of its great men which 
make the history and constitute the true glory of every nation. 
The innumerable caravan, as generation succeeds generation, 
passing along the shores of time, is lost in the sea of oblivion. 
It is oidy the few, ' the immortal names that were not bom to 
die,' that are remembered. The undistinguished dead return 
to dust and leave no record behind them. 

" It was not more beautifully than truthfully said by that 
greatest intellect of the age in which he lived, Daniel Webster, 
' that a superior and commanding human intellect, a truly 
great man, when Heaven vouchsafes so rare a gift, is not a tem- 
porary flame, burning brightly for a while, and then giving 
place to returning darkness. It is rather a spark of fervent heat, 
as well as radiant hght, with j)ower to enkindle the common mass 
of human mind ; so that when it glimmers in its own decay, and 
finally goes out in death, no night follows, but it leaves the world 
all light, all on fire from the potent contact of its own spirit. ' 
Another, pronouncing an eulogy on the author of that sentiment 
catches up the refrain, and as if in continuation, exclaims, ' No, 
sir, our great men do not wholly die ; all that they achieved 
wortliy of remembrance survives them. They live in their re- 
corded actions ; they live in their bright examjjles ; they live 
in the respect and gratitude of mankind ; they live in that pe- 
culiar influence by which one single commanding thought, as it 
runs along the electric chain of human aifairs, sets in motion 
still other thoughts and influences, in endless progression ; and 
thus makes its author an active and powerfnl agent in the 
events of life, long after his mortal portion shall have cruml)led 
in the tond>. ' 

" Born in the State of North Carolina, the deceased came to 
Mississippi in infancy. With limited advantages of education, 
without experience, fortune, or patronage, but with that lofty 
intellect and those almost unrivalled powers of eloquence which 
have made his name familiar as a household word in this, his 



DAYID C. GLENN. 313 

adopted State, lie entered upon that career which became so dis- 
tingnished. When bnt a boy, he was taken into tlie law otHce 
of tlie Hon. J. W. Chalmers and the lloii. Roger P>arton. 
Under their auspices he was introduced to puldi(* notice, lie 
was ])robablj the youngest man ever admitted to the bar in Mis- 
sissippi. He was scarcely eighteen years of age when he was 
licensed. At that time the bar of North Mississippi shone re- 
splendent with a galaxy of learning and talent unsurpassed, if in- 
deed, ever equalled, in its history. At the same time he 
bounded into the political arena, and in the memoral)le contest 
of 1844, when all over the United States the intellectual giants 
of the two contending parties met, as Greek meet^i Greek, face 
to face, and when, 

' Like fabled gods, their mighty war 
Shook realms and nations in the jar,' 

David C. Glenn proved himself a foeman worthy of the steel 
of the tallest chamj)ion of the opposing party. Again in 1848, 
when the party with whose destinies his fortunes were identi- 
fied was once more summoned to the field in grand national 
tournament, his clarion voice was heard resounding in strains of 
loftiest eloquence, from Tishomingo to the sea-shore. So in 
1850-51, when the State and the Union were convulsed with 
excitement caused by the admission of California, he was found 
where the storm of battle raged hottest, and where the missiles 
flew thickest and fastest. His last and most brilliant campaign 
was in the national election of 1860, astruggle which culminated 
in the deplorable civil war, from which the country has so re- 
cently emerged, and in which, though borne down by superior 
numbers, om- loved but stricken South challenged the admira- 
tion of the world by her almost superhuman exhibition of hero- 
ism and endurance. Though thus distinguished as a party 
leader and debater, the only political position he ever occupied 
was a seat in the convention of January, 1861. That body was 
composed of all the most distinguished men of the two parties 
in the State. Then and there, as always and everywhere be- 
fore, D. C. Glenn was the earnest advocate of the same political 
opinions he espoused when he first appeared before the pu])lic : 



314 BENCH AND BAR OF MISSISSIPPI. 

and it is not disparaging to others to say that he was at least 
the peer of the most distinguished of its members. But, if pos- 
sible, his career in his profession w^as more conspicuous than in 
tlie political arena. 

" In the fall of 18Mhe moved to the capital of the State, and 
entered earnestly and actively upon the practice of his profes- 
sion in the High Court of Errors and Appeals. The bar practis- 
ing in that forum at that day might have safely challenged 
comparison with any bar in America, if not in the world. To 
attempt an enumeration of the illustrious names which adorned 
its annals would be both tedious and invidious. It is sufficient 
to say that the juvenile jurist commanded their respect and 
admiration. 

" In 1849, having barely attained the age required by the con- 
stitution, twenty- five years, he was by an overwhelming major- 
ity elected attorney-general of the Sta.te. How he sustained 
liimself in discharging the arduous and responsible duties of 
that important position may be inferred from his unanimous 
re-election for a second term. At the close of that term, he 
resisted all appeals to fill the station longer, and took up his res- 
idence on the sea-shore in the County of Hancock, where he con- 
tinued to reside until his death. The reports of the decisions of 
tlie High Court, during the time he filled the office of attorney- 
general, are replete with the evidences of his learning, zeal, 
ability, and eloquence. 

" But the ' divine afflatus ' which inspired his utterances, and 
carried irresistible conviction to the minds of his hearers, has 
<iied away even as the remembered tones of a mute lyre. That 
dark flashing eye, on fire with genius, that silver tongue with 
its mellifluous accents, that spare lithe form, trembling under 
the inspiration of the inner life, struggling for birth, are all re- 
membered by those of us whose good fortune it was to behold 
him, ' when his blood was up, and the full tide of inspiration 
was pouring upon him.' 

"To all these advantages was added a voice of surpassing 
power and sweetness, so perfectly modulated and attuned that 
its very tones expressed the thoughts of the speaker. His im- 
agination, which was ' wild of thought and gay of wing,' was 



DAYID C. GLENN. 315 

chastened by culture, and enrielied by the choicest collections 
from classic literature. lie culled from the fields of history, 
romance, and poetry, and combined the rarest exotics with the 
productions of. his own genius. But for all this, he never sacri- 
ficed an m^gument for a figure of speech. The embelhshments 
of rhetoric were only added as a relief to himself and his audi- 
ence. When such embellishments were employed, it was onlv 
because they were so apropos that they could not be kept back. 
'' Such is a feeble portraiture of him at the bar and before pop- 
ular assemblies. To many of us he was linked by closer ties 
than any which his many intellectual powers could have cre- 
ated. The charm, the fascination of his manners, the warmth 
and spontaneity of his friendship touched and won the heart. 
But alas ! 

' The boast of heraldry, the pomp of power, 

And all that beauty, all that wealth e'er gave, 
Await alike the inevitable hour : 

The paths of glory lead but to the grave.' 

" In the pride of mature inanhood, in tlie high noon of his 
fame, his sun has set in the night of death ; and nothing re- 
mains for us who survive, but to cherish his memory, and strive 
to imitate his example, in so far as it was crowned with virtue, 
honor and distinction,'* 



316 BENCH AND BAK OF MISSISSIPPI. 



WALKER BROOKE. 

Among those gentlemen of our bar wlio seemed to have been 
designated by nature for the profession of the law, there were 
few who possessed such indications in a more remarkable degree 
than the subject of this memoir. 

Walker Brooke was born in the State of Virginia on the 25th 
of December, 1813, and tliere his boyhood and his youth were 
passed. His early scholastic advantages were good, and at the 
age of twenty-one years, he completed his education at the uni- 
versity of his native State, where he had given marked evidence 
of those intellectual traits which afterwards so highly adorned his 
character. Soon after retiring from the university, he began 
the study of law in the scliool of the celebrated Judge Tucker, 
one of the most eminent jurists of the Old Dominion, where 
he had every advantage that learning, refinement and the most 
distinguished example could atford. These opportunities were 
well improved, and Mr. Brooke was admitted to the bar with 
every prospect which a high order of talent and a thorough prep- 
aration could offer. 

But finding his means inadequate to that probationary ordeal 
which, at that period, claimed many years of a young practi- 
tioner before he could assert a position at the bar of Virginia, he 
emigrated to Kentucky, and there taught school, during two 
years, in order to maintain himself until the door of practice 
should open to him. 

But for this he possessed the unfailing " sesame ;" and now 
turning his eyes toward that already illuminated legal field, he 
removed to Mississippi and located at Lexington in Holmes 
County, where his abilities were soon recognized, and he be- 
came immersed in a large and lucrative practice. Llis talents 
were also sought in another sphere, and he was several times re- 
turned as the representative of Holmes County in the Legis- 
lature, where liis career was characterized as brilliant among the 



WALKER BROOKE. 317 

eminent gentlemen wlio, at tliat period, took their seats in that 
body. 

On the election of Senator Foote to the gnbernatorial chair 
of Mississippi in 1851, Mr. Brooke was appointed to lill his un- 
expired term in the United States Senate ; in which his politi- 
cal acnmen, stanch patriotism, and logical eloquence, attracted 
the notice of the whole country, and Mr. Brooke retired from 
this high, position with the meed of an honorable efficiency, and 
with the laurels of a well-deserved reputation. 

He was a member of the Mississippi Seceding Convention of 
18G1, and was appointed one of the committee of fifteen to re- 
port an ordinance of secession ; and while he sustained that 
measure, he was disposed to plunge not without caution into the 
abyss, and souglit to impend its effect upon the contingency of 
an effort towards reconciliation. He also introduced a resolution 
to refer the whole matter to the action of the people at the 
polls, but such formalities and delays were not compatible with 
circumstances, or in accord with the spirit of the times ; and 
Mr. Brooke was swept along wnth the current. On the passage 
of the ordinance, he was chosen one of the delegates to the 
Provisional Congress of the Southern States at Montgomery, 
and in that body continued to favor the measures of prudence. 
He seems never to have entertained the sanguine views of many 
of his associates, and appeared more disposed to obey the dic- 
tates of a cool judgment than the fiery impulses of the moment. 

He was during his whole life an inveterate and uncompromis- 
ing Whig, and waged a fierce and relentless war upon Democ- 
racy ; by the leaders of which he was dreaded, while his party 
was a rival power in the State, as a fearless champion and a foe 
of no unworthy steel. 

As a lawyer, Mr. Brooke was conspicuously imbued with the 
learning of his profession, and by his free indulgence of a taste 
and fondness for knowledge, had cultivated a familiar acquaint- 
ance with the whole field of literature. He had also thoroughly 
studied mankind, was versed in all the varied phases of human 
nature, and understood those which indicate and measure the 
virtues and vices of men ; hence he was a ready detective of 
their motives, and capable of unweaving the most intricate webs 



318 BENCH AND BAE OF MISSISSIPPI.' 

of cunning and deceit. Tliis faculty gave him great power, both 
in the elicitation of evidence and the elimination, of truth, while 
his lucid method and simplifying analysis often substituted a 
willing conviction for that confusion with which the subtleties of 
a less experienced advocate often darken the minds of the jury. 

His perceptive faculties were quick, penetrating and alert, 
and his cultured legal judgment weighed every fact in the scale 
of applicable law. His terse and forcible logic was blended 
with an earnestness and vigor that penetrated to the most obtuse 
understanding, while the candor and suavity of his manners so 
captivated the minds of his hearers that conviction anticipated 
reflection, burst every barrier of prejudice, and followed en- 
chained in the wake of attention. There were few men who so 
blended the softer emotions of a generous nature with the ruder 
elements of a stern and dutiful professional regimen. Firm and , 
uncompromising in the faithful discharge of a trust, and un- 
swerving in his devotion to the interests of his clients, he was 
mild and courteous in his professional bearing, simple and cor- 
dial in all his dealings, and exhibited at all times a heart over- 
flowing with the sentiments of charity and benevolence. 

But in no respect was he more exemplary in kindness and 
amiability than in his deportment toward the younger members 
of the bar, a quality of kindness which seems to be inseparable 
from the traits that constitute true professional greatness. He 
was always ready to befriend them, both in counsel and in deed, 
and with a patience and alacrity as if his learning and experi- 
ence were possessions in which they had a fee title of participa- 
tion ; and there are many living members of the profession 
who, to-day, remember with grateful feelings his words and acts 
of encouragement, and chcirish the hallowed impressions of his 
generous aid. 

While Mr. Brooke enjoyed, during the space of nearly thirty 
years, a large and lucrative practice at the bar of Mississippi, 
his great hospitality, large-handed charity, and liberal expendi- 
ture, precluded the accumulation of fortune. He found his 
greatest pleasure in the happiness of his friends, and in the 
gratification of every wish of his family, by whom he was be- 
loved and venerated to the depths of devotion. 



WALKER BROOKE. 8l;« 

He was married in 1840 to Miss Jane L. Eskridge of Carrol 
C:!onnty, a lady adorned witli many rare traits and accomplish- 
ments, by whom he liad ten children. 

His death, which occurred on the 19th of February, ISfV.), 
was attended by circnmstances of a singular nature. He was 
eating oysters in company with some friends, in a saloon in 
Yicksburg, when, in endeavoring to swallow one of unusual size, 
it lodged in his throat, and, in his effort to expel it, it was 
forced into the trachea, and produced suffocation and insensibil- 
ity : and although it was removed by a physician as soon as cir- 
cumstances would permit, yet, so great was his prostration and 
the effusion of blood to his brain that it became the immediate 
cause of his death, which followed on the next day. 

His death was deeply felt in the community in which he 
lived, and at the bar, of which he was a distinguished ornament, 
while the State mourned the loss of one of its purest patriots. 
The bar of Yicksburg paid a beautiful tribute to his memory, in 
which he was characterized as an ornament to his profession, an 
honor to his State, and a model father, friend, and citizen. 



320 BENCH AND BAK OF MISSISSIPPI. 



JAMES C. MITCHELL. 

James C. Mitchell was a native of Virginia, and was born near 
tlie celebrated PealsS of Otter, a circumstance to which in his 
joviality he attributed his lofty asi^irations and untamable dis- 
position, as well as his majestic stature. At an early age he re- 
moved to East Tennessee, and, having adopted the law as his 
profession, rose so rapidly in eminence and in popular esteem 
that, while quite a young man, he was elected to a seat in Con- 
gress, where the versatihty of his genius, his unfailing flow of 
humor, and eccentric characteristics, procured for him popular- 
ity if not influence. 

Mr. Mitchell, while eccentric in some respects, possessed the 
trait, unusual in such characters, of admiring that quality in 
others. While in Congress he was fondly intimate with the 
afterwards famous General Sam. Houston, whom he is said to 
have very much resembled and in whom he found an attractive 
congeniality ; and so often were these two together that they 
were designated as " the couple." But the future hero of San 
Jacinto, M'itli his unpretending manners, is said to have often 
complained that his friend Mitchell was too much disposed to 
promote his own consideration at the exjjense of his colleagues, 
and as an evidence of which he related that on one occasion the 
Tennessee delegation in Congress agreed to pay their respects in 
a body to a distinguished foreign minister who had lately arrived 
in Washington, and when they reached the door of his residence, 
Mr. Mitchell stepped forward and handed to the janitor a card 
upon which was insci'ibed " James C. Mitchell and the rest of 
the Tennessee delegation." 

But this blended trait of joviality and egotism contained no 
vein of envy or malevolence. He was fond of notoriety, and 
especially of distinguished compliment, an instance of which he 
is said to have often related with great pride and complacency. 
He had delivered an able argument upon the tariff question, and 
on returning to his seat passed that of John Eandolph, who, ris- 



JAMES C. MITCHELL. 321 

ing and taking his hand, said : " General Mitchell, I thank you, 
in the name of Virginia, for your eloqnent and nohle speech. 1 
have not heard the like before, since I came into Congress, and 
1 regard yoii as one of our most precious jewels, yes, sir, one of 
our most precious jewels.'''' 

At the expiration of his term in Congress in 1828, he was 
elected to the circuit bench of Tennessee, and, as a judge, is 
said to have been zealous and efficient, and to have given grate- 
ful satisfaction to his constituency. On the bench his ambition 
and integrity of purpose were directed to the ends of justice, 
while his peculiarities were confined to a punctilious observance 
of propriety. His notions of judicial dignity and court deco- 
rum were rigid and sometimes ludicrously exacting. It is re- 
lated that on one occasion, when he was presiding in the trial of 
a case of great importance, a young man with creaking boots 
passed several times across the court-room greatly to the annoy- 
ance of his honor, who finally, having exhausted his patience, 
exclaimed : " Mr. Sheriff, bring that young man before the 
court immediately !" AVhich having been done, the judge ad- 
dressed the astonished culprit thus : " Pray, sir, how much did 
your boots cost you ?" " Ten dollars, sir," replied the young 
man. " Well," said the judge, "you will never be able to 
say that again. The boots shall cost you twenty dollars. Enter 
a fine of ten dollars against this young man for striding through 
the court- room in creaking boots." 

Judge Mitchell was the author of a work entitled " Mitchell's 
Justice," a supply of which he is said to have carried with him 
around the circuit, and to have taken occasion on the first day 
of each term to intimate from the bench that all who desired a 
copy could procure one by calling at his private room. 

lie came to Mississippi about the year 1837, and located in 
Hinds County. He was then advanced in years, but had lost 
none of his colloquial versatility and facetious humor, and soon 
rendered himself popular with his new associates. He wjus fond 
of relating stories of which he was the hero, and was always 
ready to entertain his l)rother mendjers of the bar, who fre- 
quently convened in his room after the forensic labors of the 
day to listen to his amusing narratives of the ludicrous events of 
his experience or the wonders of his own personal performance, 



322 BENCH AND BAR OF MISSISSIPPI. 

and which his brilh'ant imagination and highly wrouglit powers 
of description would clothe in all the colors of romance. As an 
instance of this kind, it is related that on one occasion the citi- 
zens of the town in which he resided while in Tennessee, ar- 
ranged for a grand reception to be given to a distinguished citi- 
zen on his return home from a foreign mission, in which he had 
acquired much honor and distinction for his aljle and faithful 
services, " and," said he, " as I was known to be versed in the 
etiquette of Washington, whence I had lately returned, I was 
appointed to deliver the welcoming address, which 1 diddn a 
style truly satisfactory, and with so much grace that it was in 
consequence arranged also that I should escort the accomplished 
daughter of the ex-minister to the ball to be given that night, 
and engage her in the first set. To all of which I most pleas- 
edly consented, and when the dance began I led my charming 
partner out. Tliere were at least fifty couj)les upon the spacious 
floor, and, while gracefully weaving her through the mazes of 
the contra, I occasionally wdiispered the most delicious senti- 
ments in her ear, until completely charmed with my agility and 
gallantry the fair creature exclaimed, pathetically, ' Oh ! Col. 
Mitchell, how 1 do wish that you were not a TiiaTried man.^ 
' Most adorable lady !' said I, ' I will assure you that at least a 
thousand of your sex have expressed the same wish ;' and, at 
this moment, seeing a vacant space adjacent, I leaped fully 
ten feet from the side of my fair partner, and, gracefully whirl- 
ing, turned to the astonished lady, and waving my hand in 
token of respectful submission to her approbation, I said, 
' Pray, Miss, what do you think of that.' To which she re- 
plied, ' That, sir, was certainly the most extraordinary feat I 
ever witnessed, and I can only apply to you the words of Lord 
Byron in his description of George the Fourth : 

' Without the least alloy of fop or beau, 
A perfect gentleman from toj) to toe. ' 

The success of Judge Mitchell at the bar was due more to his 
bold assumptions, to the startling postulates which his imagina- 
tive powers and copious flow of speech clothed with a confusing 
plausibility, and to his ready wit, than to any profound depth 
of learning or logical acumen — more to a superb genius than to 



JAMES C. MITCHELL. 323 

any solid legal attainments. His disposition ivas too niudi uf a 
social character, and lie was too fond of the pleasantries of so- 
ciety to snbniit to the restraints of close application, and liis 
spirits too exuberant to bear the jealous monotony of profes- 
sional routine. He was more the political than the \e*^i\\ advo- 
cate, and had few superiors on the stump. He was a Whig in 
politics, and a warm admirer of General Harrison. 

It is related that, during the presidential campaign of 1840, 
some Democrat in one of the piney woods counties of Missis- 
sippi diad among other things accused General Harrison of cow- 
ardice at the battle of Tippecanoe, where he claimed to have 
been present and to have witnessed his misconduct ; and it hap- 
pened that while Mr. Mitchell was making a speech at a large 
gathering in that county in the interest of his favorite, he 
espied the individual who had made this assertion, and calling 
his name, asked : 

" Did you say that you were at the battle of Tippecanoe, and 
that you saw General Harrison display evidences of cowardice T' 

Aiisioer. " I did." 

Judge Mitchell. " Did you see me there, sir ?" 

A. " I do not remember seeing you." 

Judge 21. " Yet, sir, I was there, and was constantly by 
General Harrison's side, and if you had been there, you would 
have seen me." Then turning to the audience, he exclaimed, 
" See, fellow-citizens, how easily a lie can be refuted." 

A short time before his death he was a ciwididate in Hinds 
County for a seat in the Legislature, and it is said that in a 
joint discussion before a large assemblage of the people of the 
county, Judge Mitchell, summoning his remarkable powers of 
ridicule, assailed his opponent with such a torrent of derision 
that the latter, losing all patience, exclaimed : " Judge Mit- 
chell, when yon descend from that stand I will whip you." 
"That you may do," said the judge, "but it Avill not elect 
you ; for I remember that when I was a boy my father owned 
a bull that could whip all the other bulls in the neighborhood ; 
yet I never heard it urged that his bullyism titted him for the 
Legislature." 

Judge Mitchell died at his home in Hinds County in 1S43. 



CHAPTER X. 



THE BENCH— EMINENT JURISTS— 1850-1880. 

WILLIAM YERGER WILLIAM L, HARRIS EPHRAIM S. FISHER EPHRAIM 

G. PEYTON COLLIN S. TARPLEY. 

This chapter closes the dead L'st of the eminent gentlemen 
who occupied seats upon the bench of the High Court of Errors 
and Appeals of Mississippi, Many of their contemporaries and 
some of their associates upon the bench are still living, and it 
is hoped that they may long live to enjoy that high station in 
the respect, love, and veneration, of their fellow-citizens, which 
their great abilities, model characters, and illustrious services 
have so justly merited ; and that they may long look with pride 
upon the full fruition of peace, happiness, and prosperity, un- 
der that reign of justice to the establishment of which their 
precepts and examples have so greatly conduced ; and that by 
reason of length of days, they may, if possible, achieve even 
more good than did their distinguished compatriots who have 
preceded them to that court of competent awards where the 
meed of virtue is found in the approving smiles of Omnipo- 
tence. 



326 BENCH AND BAR OF MISSISSIPPI. 



WILLIAM YEEGEE. 

This great and good man was born in Lebanon, Tennessee, 
on tlie 22d of November, 1816. The family of Mr. Yerger 
was of Dutch origin. His parents were prosperous and highly 
respected. His early educational advantages were good, and he 
was graduated from the University of Nashville, where he also 
studied law, before he was twenty-one years of age, and was 
immediately admitted to the bar. 

In 1837 he removed to Mississippi, and settled in the town of 
Jackson, where he at once began that splendid career which 
culminated in tha most brilliant reputation, and most lucrative 
practice at the bar of Mississippi. The politics of Mr. Yerger, 
whicli were those of the Whig party, precluded him from the 
political preferments to which the versatility of his genius and 
liis ambition might have aspired ; but so stern and uncompro- 
mising was his integrity that no glitter of prospect could induce 
him to swerve from the strict line of his principles. Indeed, 
so fixed and rectified were his conscientious resolves, that 
neither the frown of tyranny nor the applause of flattery, the 
smiles of fortune nor the whirlwinds of adversity, could shake 
them from the firm base of his convictions ; but if the shattered 
heavens had fallen upon his head, the ruins would have buried 
him clad in the robes of conscious rectitude. 

But, notwithstanding his politics, and known hostility to 
some of the popular measures of the day, which were likely to 
become of judicial cognizance, so great was his ability as a law- 
yer and his worth as a man, that they finally wrenched the 
tribute of even partisan recognition, and in 1850 he w^as elected 
by the po[)ular vote to a seat upon the High Bench of Errors 
and Appeals. During the civil Avar he was a member of the 
Legislature, and in the convention of 1865 and throughout the 
dark days of reconstruction lue was active and strenuous in his 
efforts for the restoration of the State government and the 
amelioration of the condition of his people. 



WILLIAM YEEGER. 327 

In contemplating tlie cliaracter of Judge Yerger we arc daz- 
zled by the uniformity and constancy of its glow. Tliei-e are 
no jetting traits to serve as landmarks to the analysis. Tliere 
are no conspicuous planets or brilliant constellations to arrest 
our gaze. No glaring meteors flash along the sky. No auroras 
or milky ways usurp broad tracks in the firmament, but the 
whole canopy, from tlie zenith to the horizon, blazes with one 
common, uniform light, such as flows from the full round orb of 
day. The qualities of his head and heart were in constant 
equipoise, so that it is difticult to judge which was the most 
vigorous of his virtues — whether his main springs of action 
vibrated most from the touch of judgment or benevolence, 
patriotism or philanthropy, piety or pity. 

On his first appearance at the bar of Mississippi, where lie 
immediately came in contact with some of the most eminent 
legal minds of the country, though scarcely past the threshold 
of manhood, he exhibited a depth of learning, a penetration of 
judgment, and a knowledge of human affairs, unsurpassed by 
the precocious intellect of Lord Chatham. Sedate, dignified 
and respectful in his bearing, he was utterly free frtjm the 
frivolities and indiscretions that frequently attend one of his 
age and conscious powers. His conduct and conversation were 
apparently impressed with tlie mould of experience, and were 
so striking as to require no aid of ostentation to give them 
prominence. 

His perception was quick and penetrating. Ilis language 
expressive and chaste ; and he came into court with success and 
reputation stamped upon his brow. Certainty followed in the 
train of his virtues, and step by step, in rapid succession and 
with the unbroken continuity of time, Judge Yerger climbed 
to the proud eminence of his fame. 

As a lawyer he had few^ superiors on this continent. He had 
studied deeply every department of jurisprudence, was pro- 
found in all the branches of the profession, and tlie great 
principles of law had become identified with his own judg- 
ment. 

Nature seemed to have bestowed upon him every qualification 
in her power for the eminent sphere in which he moved, and 



828 BENCH AND BAE OF MISSISSIPPI. 

tl)ese the culture of severe and systematic training had polished 
and blended into abilities of rare brilliancy and outline. 

At the bar his powers of reasoning, of comprehension, of 
perception, and of the exercise of sound judgment, were so 
equally prominent and poised, that no faculty of his mind 
seemed to claim superiority or predominance ; but if there was 
any one trait that might be designated especially as the key 
to his success as an advocate, it was the capacity for making a 
lucid presentation of his case — for presenting a concise syn- 
thetical summation of facts, a forcible and convincing applica- 
tion of law, for disrobing his adversary of all false color and 
superficiality, and for whittling the question down to the very 
hinge of fact and gist of legal merit. The powers of his intel- 
lect moved with the order and regularity of a well-adjusted 
machine, with all its parts under the perfect control of the 
motive power. He subjected every grain of fact, and every 
texture of law to the stern crucible of inflexible justice. 

His powers of oratory were characterized by no hyperbolical 
display, or gewgaws of declamation. His eloquence, which was 
always compatible with his theme, aimed at no deception or 
hallucination, but his suasion appealed directly to the bench of 
judgment and the bar of justice. 

As a judge of the High Court of Errors and Appeals, Mr. 
Justice Yerger developed only in a more public manner his 
great abilities, and the eminent traits of his character. His 
learned, copious, and lucid decisions, glare with immortal splen- 
dor upon the pages of Mississippi jurisprudence. Whilst he was 
the soul of amiability and courtesy, he was self-reliant and inde- 
pendent in his views, and positive and determined in his opinions. 

In the great case of The State of Mississippi 'v. Johnson, 25 
Mississippi Eeports, 625, which involved the liability of the 
State for the payment of the bonds of the Union Bank, not- 
withstanding that the opinion of the court fixing liability upon 
the State had been delivered by Mr. Chief Justice Smith, and in 
which Judge Yerger fully concurred, yet he saw proper to de- 
liver his individual opinion, and with the fate of Dentatus 
peering in his face, he placed his back against the constitution 
and laws of the State, and turning his front to the people, de- 



WILLIAM YERGER. 329 

ficd the peTialty of his integrity. This decision, thoiigli power- 
ful, .clear and unassailable, so far as concerned the law of the 
case, was not accepted by the dominant political party, and was 
as fatal to the official preferment of Judge Yerger as was the 
defence of Queen Caroline to the professional advancement of 
Lord Brougham. 

When every effort had been made to control the opinion of 
Lord Mansfield, in the case of Rex v. Wilkes, that great judge 
took occasion to make the following illustrious observations 
from the bench : 

'' I pass over the many anonymous letters I have received. 
Those in print are public, and some of them have been brought 
judicially before the court. Whoever the writers are, they 
take the wron'g way. I will do my duty unawed. What am I 
to fear ? What mendax infamia from the press which daily 
c,om& false facts ^wdi false motives f The lies of calumny carry 
no terror for me. I. trust that my temper of mind, and the 
color and conduct of my life, have given me a suit of armor 
against these arrows. If during this king's reign, I ever sup- 
ported his government and assisted his measures, I have done it 
without any other reward than the consciousness of doing what 
I thought right. If I have ever opposed, I have done it upon 
the points themselves, without mixing in partij or faction, and 
without any collateral views. I honor the. king and respect the 
people ; but many things acquired by the favor of either, are, 
in my account, objects not worth ambition. I wish popularity, 
but it is that popularity which follows, not that which is run 
after. It is that popularity w4iicli, sooner or later, never fails to 
do justice to the pursuit of nolle ends by nohle means. I will 
not do that which ray conscience tells me is wrong, upon this 
occasion, to gain the huzzas of thousands, or the daily praise of 
all the papers which come from the press ; I will not avoid 
doing what I thinh is right, though it should draw on me the 
whole artillery of libels, all that falsehood and malice can in- 
vent, or the credulity of a deluded populace can swallow. I 
can say with a great magistrate, upon an occasion and under 
circumstances not unlike, ' Ego hoc animo semper fui, ut invid- 
iam virtute partam glorimn, 7wn invidiam^ putarem.' The 



330 BENCH AND BAE OF MISSISSIPPI. 

last end that can come to any man never comes too soon, if he 
falls in support of the lavj and liberty of his country, for liberty 
is synonymous to law and government." 

The following are extracts from Judge Yerger's opinion, 
presenting his reasons for the separate emmciation of his views, 
which, like Lord Mansfield, he entertained unshaken by oppo- 
sition and unswerved by circumstances. 

" While I concur most fully in the opinion of the court, pro- 
nounced by the chief justice, I deem it proper to express my 
individual opinion upon the questions presented by the record, 
and to give some of the reasons which have influenced the for- 
mation of that opinion. 

" The importance of the questions in controversy will justify, 
if they do not require, this course. Every mend>er of the court 
has given to this question an attentive and careful examination. 
The important and interesting questions arising in it, and Avhich 
were presented in a novel and unusual manner, were well calcu-, 
lated to evoke a most patient investigation. 

" On the one hand a private individual presented himself 
before the judicial tribunals of the State, alleging that he had a 
just and legal demand against the State, the payment of which 
had been refused ; that this demand consisted in the bond of 
the State, sealed with the great seal, signed by the governor 
and treasurer, and executed and delivered to him, pursuant to 
an act of the Legislature, by which the faith of the State was 
pledged for its payment and redemption. 

" On the other hand, the State of Mississippi denied the validity 
of this bond, alleging that it was sealed and delivered by the 
governor without authority, and that the act of the Legislature, 
from which he pretended to derive his power, was unconstitu-' 
tional and void, and that no contract or agreement made under 
it created any valid obligation binding upon the State. 

" We are not unaware of the unusual interest which these 
questions have excited for many years, and that they were at 
one time the subject of an animated political controversy. 

" But sitting here as judges to administer the law, under the 
solemn sanction of our oaths, we have endeavored to discard 
from our minds every extraneous and improper influence, and to 



WILLIAM YERGER. 331 

address ourselves, witbout bias, to tlie candid examination of the 
legal questions presented by tlie record. As judges, it is our 
duty to declare tbe law, not to make it. lieasons of State 
policy or political expediency sbould not influence our judg- 
ment. It is our duty to decide tbe law of tbe case as it appears 
upon tbe record, regardless of all consequences. Entertaining 
tbese views, and baving formed my opinion in accordance with 
tliem, I am only anxious to explain tbe grounds on wbicb I 
liave proceeded, so as to satisfy -tbe mind tbat tbe judgment 
given in tbe case is tbe only one wbicb could bave been given 
in accordance witb tbe rules of law. . . . In tins matter we bave 
no discretion ; tbe patb of duty is i)lain and obvious. As tbe 
constitution and laws bave autborized suits to be instituted 
against tbe State, it is tbe duty of tbe court to pronounce judg- 
ment in tbem, as in all otber cases tbat may come before it. 

" As tbe plaintifiE bas appealed to tbe judicial tribunals of tbis 
State, tlje matters in controversy must be decided according to 
tbe constitution and laws of Mississippi, and to tbose rules of 
law wdiicli regulate and govern alike tbe contracts of States and 
tbe agreements of private individuals." 

Mr, Justice Yerger tben proceeds to exbibit in a clear and 
unmistakable ligbt tbe competency of tbe agency of tbe gov- 
ernor and treasurer, and tbe liability of tbe State, alike as indi- 
viduals, for tbe acts of its agents done witbin tbe scope of 
autbority : 

Tbat tbe contract on tbe part of the State, wbicb required 
tbe sanction of two successive Legislatures, was not impaired 
by tbe mere tecbnical and model cbanges made by tbe supple- 
mentary act, but tbat it was sufficient if tbe identical section 
of tbe original act creating tbe liability was re-enacted by tbe 
subsequent Legislature. Tbat tbe introduction of new and 
additional provisions in tbe supplementary act could not defer 
tbe validity of tbe original act to tbe sanction of a tbird suc- 
ceeding Legislature. 

That tbe provision of tbe supplemental act admitting the 
State as a stockholder did not destroy tbe identity or change the 
character of tbe corporation : That corporations are not affected 
by a change of tbe individuals who compose them. 



332 BENCH AND BAH OF MISSISSIPPI. 

But that ''State policy and political expediency," wliich 
Judge Yerger declared to be of no avail upon the bench, con- 
tinued to thwart by its inaction the execution of the law as ex- 
pounded by the High Court, until the " carpet-baggers" in 
their Constitution of 1868 relieved the people of the State from 
all responsibility, and all unpleasant contemplation of the 
question, by forever foreclosing and precluding the liability of 
the State for the payment of these bonds. 

Judge Yerger possessed a mind of the most fertile resources, 
and was never at a loss for apt illustration ; while he seemed to 
spurn the subtle process of abstraction, he penetrated and ex- 
plored every feature of a question with the lantern of Diog- 
enes. Eschewing the Baconian system of slow and tedious 
induction, he preferred the Socratic method of practical investi- 
gation and rapid conclusion. He followed the train of reason- 
ing with a glance, and his judgment grasped the truth as if by 

intuition. 

* 

There was no field of knowledge closed to his view, and his 
genius sought the summit of every social elevation. The great 
kindness of his nature was at all times manifested, whether upon 
the bench or at the bar, in friendly companionship or in the 
domestic circle ; his heart pulsated with a benevolence that shed 
around him a halo of benign and attractive influence. His 
sympathies were always with the weak, the afflicted, and the 
distressed ; and so warm and free was his charity, that they 
never failed to obtain succor at his hands. The widow and the 
orphan were the objects of his unfailing solicitude, and they 
always found in him a champion ready to devote his utmost 
energies to their cause. 

Every imposition of power, every infringement of right, and 
every unjust act, were objects of his indignation, and awakened 
his sympathies for the sufferer, and he was ever ready to invent 
and advise the proper means of obtaining redress. 

In the case of ex parte Adams, 3 Cushman, 883, the 
prisoner had been committed for contempt by the judge of the 
Circuit Court for refusing to answer questions propounded to 
him by the grand jury, and applied to the judges of the High 
Court for a writ of habeas corpus. The sympathies of Judge 



WILLIAM YEKGER. 333 

Yerger were evidently awakened in behalf of the prisoner, but 
how to effect his enhirgement was tlie question. 

Tlie right to punish for contempt was inherent, and pertained 
to all courts of justice, independent of any statutory power. 
The acts and judgments of the Circuit Court concerning all 
matters within its jurisdiction were binding and conclusive, until 
set aside or reversed by some authorized appellnte power. The 
legality of their judgments could not be questioned. The 
power to discharge from commitments for contempt was ex- 
pressly excluded by the haheas corpus act. What could be 
done for the prisoner ? Judge Yerger turned to the record. 
The order of committal lacked an expression of conviction. It 
was not lawful to imprison a person without conviction and 
judgment, both of which must appear upon the record. The 
prisoner was discharged. 

Mr. Justice Yerger was a man of great forbearance and self- 
possession. He was never known to violate the rules of pro- 
fessional propriety ; under the severest test of patience, in the 
heat of the fiercest forensic contests, he preserved a dignified 
composure, and courteous equanimity towards court, counsel, and 
witness ; like Lord Chesterfield, he considered politeness as the 
lubricator of society — the crowning jewel of personal graces. 
Xot to roughen, but to smooth the path of others, he recognized 
as the great duty of man to man. 

The following instance of his self-sacrificing devotion to the 
welfare and happiness of others was related by Judge Potter : 

" He and other distinguished counsel were, with myself, con- 
cerned in a most important cause. It so happened that papers 
pertaining to that cause, and which might possibly become 
very important in the future progress of the suit, were a j)art 
in his possession and a part in mine. One night about mid- 
night, toward the close of his illness, being seized with one of 
those paroxysms of pain and nausea incident to his disease, he 
requested his son to hasten for his physician ; but at that 
moment his thought seems to have turned to that suit, and he 
directed his son to sit down first and write notes to Judge 
Johnston and myself, informing us where to find those papers 
in his possession, and requesting us to place them all together 



334 BENCH AND BAR OF MISSISSIPPI. 

in a safe place. With the pains of death upon him, he thus 
waived the call of his physician and the relief that his skill could 
give, that he might provide for the security of another. Those 
papers must be cared for before he would think of himself. ' ' 

The physical powers of Mr. Justice Yerger were never equal 
to his moral and intellectual. They constantly struggled under 
the heavy burden of his professional labors until, finally, in the 
full bloom of his manhood, and in the height of his usefulness 
and fame, his small and feeble body bent beneath the burden 
of his intellectual trejisures, and, no longer able to withstand the 
demands of his energy and the attrition of his mind, sank ex- 
hausted into the sleep of death. His name is forever blended 
with all that is virtuous as a citizen, eminent as a lawyer, and 
righteous as a judge. He died in the city of Jackson on the 
7th day of June, 1872. 

The following proceedings were enacted at the bar of the 
Supreme Court on the announcement of his death : 

' ' On the meeting of the Supreme Court, on Saturday, the 
8th day of June, 1872, after the minutes were read and signed, 
the Chief Justice announced that, in consequence of the death 
of William Yerger, and out of respect to his memory, no busi- 
ness would be taken up on that day, and the court was ordered 
to be adjourned until 10 o'clock on Monday following, and on 
the adjournment of the court the following proceedings were 
adopted by the bar : 

" On motion. Chief Justice Peyton was requested to preside 
over the meeting, and the clerk of the Supreme Court was ap- 
pointed secretary. 

" On motion, the chair appointed a committee to draft resolu- 
tions expressive of the feelings of the members of the bar in 
regard to the death of William Yerger. 

" The following gentlemen composed the committee : 
Wiley P. Harris, William L. Sharkey, George S. Potter, 
Thomas J. Wharton, and Amos R. Johnston. 

" On motion, it was 

" Eesolved, That the members of the bar of Jackson, as a 
mark of respect to the memory of their deceased brother, Judge 
William Yerger, will attend the funeral in a body, and that the 



WILLIAM YEEGER. 335 

judges and officers of the Supreme Court, and of the other 
courts of the city, be requested to attend also. 

" On motion of General Freeman the meeting then adjourned 
until 11 o'clock on Monday. 

" Jackson, Monday, June 10, 1872. 

" Pursuant to adjournment the meeting was called to order 
by the Chief- Justice, M'hen W. P. Harris, on the part of tlie 
committee, reported the following preamble and resolutions : 

" William Yerger, the great citizen, our neighbor, our 
friend, our brother, is dead ; and we, assembled to render cus- 
tomary honors, lack words to declare his worth and the mag- 
nitude of our loss. No memorial that we can frame would 
fitly present him, all worthy and admirable, as he deserves to 
be remembered. The testimonies of his life, his daily goings 
out and in among us, are a brighter record than any we can 
oifer. 

" To declare him pre-eminent and faithful upon the bench, 
at the bar, in the halls of Legislature, and in his whole course 
of public duty as a citizen, is to utter but part of what we know 
is justly due to his memory. 

" Devoted to his profession, and diligent in the use of extraor- 
dinary aljilities. Judge Yerger possessed vast acquirements in the 
law, and there arose no question in the profession that seemed be- 
yond the scope of his powers or range of his studies. His in- 
tuition was wonderful, and he seemed to reach, by thought, the 
right conclusion, to which others came by laborious study. A 
devoted advocate of the Just rights of his client, Judge 
Yerger was ever the exemplar of perfect courtesy, and al- 
though most sensitive and high-spirited, he so possessed the 
power of self-control that, in the course of a long practice, it is 
not remembered that he ever violated the courtesies of the pro- 
fession. He was a ma;i of strong convictions and positive opin- 
ions, but, nevertheless, he possessed so nnich and such gentle- 
ness of grace that, in all his intercourse, he was ever and pre- 
eminently the brotherly man, the faithful friend, the composer 
of strife, the promoter of good, and the advocate of peace and 
virtue. " 



336 BENCH AND BAR OF MISSISSIPPI. 

*' For many years Judge Yerger enjoyed, perhaps, the largest 
and most lucrative practice in tlie State ; but, notwithstanding 
the excessive laboi-s it imposed rnd the strong temptations of 
accumulating gains, he never, so far as known, turned a deaf 
ear to the claims of the friendless or the widow or orphan, but, 
as we know, freely gave time and labor and talents to secure 
or defend their rights. Of him it may be truly said, ' He de- 
livered the poor that cried, and the fatherless, and him that had 
none to help him.' 

" The death of such a man, so capable and so worthy, is not 
only a family bereavement, but also a public loss, a great loss to 
the judiciary and to the State and country ; be it, therefore, 

'''' Resolved^ That we cherish with abiding affection and rever- 
ence the memory of our departed brother, William Yerger, and 
we tender sincere and affectionate sympathy to his sorrowing 
family. 

'"'' Jiesolved, That we wear the customary badge of mourning 
for thirty days. 

^^ Resolved, That the Attorney-General be requested to pre- 
sent the proceedings of this meeting for record in the Supreme 
Court ; that a copy thereof be delivered to the family of the 
deceased, and that copies be published in the newspapers of the 
city." 

On presenting these resolutions, Judge Wiley P. Harris 
made the following appropriate and beautiful remarks : 

" Mr. Chairman : Before asking the adoption of the reso- 
lutions which have just been read, 1 will say a few words upon 
the deeply interesting but melancholy subject to which they 
relate. 

" The deplorable event, the bare dread of which has hung like 
a cloud over this community for the past three or four months, 
has at last occurred. In spite of the prayers of the good, 
in spite of that mute appeal which the great needs of the 
community and the country made in behalf of one so eminently 
wise, good, and useful, w^e have lost William Yerger. 

" How much this sad utterance, now heard on all sides, means 
to the State, ill prepared to lose any of her supports, with laws 



WILLIAM YERGER. 337 

and institutions recently and radically remodelled, and yet un- 
tried ; how much to the community in Mdiich he d^-elt, and 
which looked to him as counsellor and guide ; how much to liis 
family and kindred ; how much to the profession to which he 
belonged, and to the higli rank and reputation of which he so 
much contributed— it is difficult to estimate. Certainly we are 
more likely to underrate than overrate the magnitude of tlie 
misfortune. A great and beneficent light has been extinguished 
in our midst. We shall see its brightness and feel its warmth 
no more forever. An estimate of his character, so far as we are 
capable of estimating it, will serve to convey some idea of the 
extent of the loss we have sustained. 

" It is not for me to attempt to measure the intellectual stature 
of William Yerger, nor to point out and define those traits of 
mind by means of which he built up a splendid and lasting repu- 
tation. I may refer, however, to the manifestations of his great 
powers, which were obvious to all. 

" Prior to the war his political opinions excluded him from 
public political life — that theatre on which the display of great 
intellectual strength attracts the largest sLare of public atten- 
tion. He was, however, elected to a seat on the bench of the 
High Court of Errors and Appeals, and he at once made himself 
famous there. I will only recall to your mind, Mr. Chairman, 
his great judgment in that greatest of cases, in which the issue 
was the liability of the State to pay the Union Bank bonds. In 
the face of a popular feeKng violent and proscriptive, and 
which had carried men into office, and driven men from office, 
he firmly and fearlessly declared that the State was legally, as 
well as morally, bound to pay these bonds. 

' ' He was a member of the Legislature during the war, and after 
the war a member of the Convention of 1805, which had to deal 
vsdth many grave and difficult questions. His profession drew 
him into the discussion of the greatest questions which arise in 
the jurisprudence of a country ; and without goiiig into particu- 
lar instances in which he displayed his almost unrivulled abili- 
ties, I may sum them up by saying that lie was always equal to 
the occasion, and always rose to the full height of every ques- 
tion, whatever it chanced to be, which was presented to him. 



338 BENCH AND BAK OF MISSISSIPPI. 

or upon which he was called to speak or act. His perceptions 
were singularly quick and clear, and the vigorous activity of 
his mind without any parallel in my observation of intellectual 
men. 

" The resources of his mind were rich and varied, and were 
always under his instant and absolute control. His capacity for 
intellectual labor was, it seemed, almost without limit. Sir 
Walter Scott defines talent to be a capacity for intelligent intel- 
lectual labor ; if so, William Yerger's talents were really tran- 
scendent. 

" It was in the legal forum that he displayed to us more fre- 
quently the wonderful strength and fertility of his mind. His 
learning was accurate and complete, and he had, moreover, that 
which learning may improve but cannot supply. It was said 
of Lord Hardwicke that he had an intuitive perception of the 
law ; and this rare gift William Yerger possessed to a degree 
that was almost startling. He could, with apparent ease, un- 
ravel the most entangled controversy, and there w^as no question 
of law so difficult or turbid, by contradictory precedents, that 
he could not readily see to the bottom of it. We all had oc- 
casion to admire the sure-footed sagacity with which he man- 
aged a cause in court. He never hesitated, nor stumbled, nor 
blundered. 

" He had, in addition to these extraordinary powers, traits 
which heightened their effect, and which denote a superior 
mind and a superior man ; and these were, a temper under 
complete control, and a uniform decorum and moderation of 
language ; and he taught us, among many other fine lessons, 
that this kind of forbeamnce was compatible with the highest 
attainable success. 

" But, Mr. Chairman, these imposing and brilliant intellectual 
traits, admirable as they are, do not account for that strong hold 
he had upon the minds and hearts of men, nor for that marvel- 
lous personal sway which he acquired over all who knew him. 
There is another side of his character about which I can speak 
with greater confidence, because I am better able to compreliend 
it. He was thoroughly and pre-eminently a good and generous 
man. Surelv the bright fiame which warmed and illuminated 



WILLIAM YERGEE. 330 

that capacious mind was kindled in the lieart. It is tin's which 
explains why it is that so many persons not connected with him 
by the ties of kindred or the engagements of business feel his 
death to be to themselves a peculiar personal misfortune. To 
this we owed that kindly warmth of manner, the genial smile 
and brightening eye in his cordial greeting of his acquaintance. 
His generous heart flowed freely in friendship, kindness, and' 
sympathy to everybody. 

" Lord Clarendon, in his fine delineation of the character of 
John Hampden, notes the singular personal sway which he ac- 
(piired over all who came in contact with him ; and it seems, in- 
deed, that the king against whom he was lighting felt this sway, 
for when Hampden was wounded lighting in the Parliamentary 
army, the king sent his own surgeon to attend him. Speaking 
of the charm of IIamj)den's character and manners, Clarendon 
says : ' Lie had a flowing courtesy towards all men.' I could 
never contemplate the character of William Yerger, and cannot 
contem|)late it now, without recalling this fine portrait ; and 1 
have never thought that the great fame of Llampden suffered 
by the comparison. 

" To this kindly and genial spirit we owed the exhibition 
of the liberal hospitality which he dispensed. He was truly 
' given to hospitality,' and hospitality in him was of that high 
quality which exalts it into a noble virtue. Poverty was no 
check to this spirit in him, and it was in his house that one 
learned that hospitality was not made of bread and moat alone. 
Indeed, it seemed to me that the most acceptable thing he 
offered to his guests was himself. He would set himself to 
work with persevering diligence and tact to compel the dullest 
man and the dullest company to enjoy themselves, and this 
was his constant habit, whether host or guest. 

" These qualities, however, though pleasing to contemplate, 
merely contributed to the amenities of life. His rich nature 
held treasures far more precious. He was the most useful 
person I ever knew. [No man, burdened as he was, ever did as 
much hard work gratuitously for other people :is he ; nay, with 
or without the burden, for when he was asked for help, his (.wn 
burden seemed to groAV as light as a feather. How he contriv ed 
22 



340 BENCH AND BAR OF MISSISSIPPI. 

to do so much is to me a real mystery, and, besides, I am con- 
vinced, and the conviction does not spring merely from per- 
sonal admiration, that he went about this work with a positive 
relish. He was always willing, always ready, and what is more to 
the purpose, he always tried, and tried zealously, and rarely failed. 
" During the stress of the civil war, and especially during that 
dreary period which followed the military occupation and gov- 
ernment of the State, many people got involved in sore trouble. 
He was not exempt himself, and yet he busied himself niglit 
and day with the troubles of his neighbors, as though he had 
310 cares of his own. He seldom, if ever, spoke of them. 

" His iirmness and unconquerable spirit, coupled with his higli 
character and reputation, secured the respect of the military 
men in command here, and gave him a certain influence which 
he emjiloyed for the noblest purposes. He never exerted it for 
himself. In those days people flocked about him as though 
there was healing in his touch. 

" The resolutions declare truly that he was the friend of the 
friendless, the w-idow, and the orphan. How inany, how very 
many of these, felt the protection of his sheltering hand ! It 
always seemed to me that he regarded himself as expressly 
commissioned to take charge of them. He responded for them 
in the courts ; and if AVilliam Yerger was found evincing un- 
common zeal and exhibiting more than his usual anxiety ; if he 
was found ransacking the libraries and fortifying himself with 
books, you might know from these signs whose case he had in 
charge. 

" It is needless to inquire what he was as the head of a family. 
From what we know of him otherwise, we would naturally con- 
clude that a beautiful harmony reigned in his household, and 
this is true. In his professiohal relations he was not only void 
of offence, but made his example a standard of propriety. A 
quiet dignity of bearing and decorous language nuirked his in- 
tercourse with the bench and Ijar ; indeed, he seemed to have no 
deficiency, 

*' Such was the man we have lost ; such the loss to which we 
must now reconcile ourselves. I have touched his admirable 
character here and there — conveying, I know, but a faint im- 



WILLIAM YERGEE. 341 

pression of its great excellence. The tlieme is very fruitful, 
but I am conscious that there are around me many of his 
friends whose feelings prompt them to say something on tliis 
sad occasion, and 1 give way to them." 

Eloquent and touching tributes were then pronounced l»y 'Mv. 
Justice Simrall, Judge Handy, General T. J. Wharton, Judi^e 
Morris, and Judge Potter. 

The resolutions were then unanimously adopted, and Chief 
Justice Peyton responded as follows : 

" The court unites with the bar in honor to the memory <»f 
our departed friend, William Yerger, and receives with pro- 
found sensibility their resolutions commemorative of his Hfe 
and virtues, and eminence as a jurist. Possessing a vigorous 
mind, diligent habits, earnest and honest purposes, and liberal 
views, kind and benevolent in his disposition and affections, 
and simple and unaffected in his manners, his life was one of 
dignity and usefulness. The memory of such a character and 
such a life goes far to soften the sorrow we feel for the loss so- 
ciety and the country have sustained. At the call of Ilini who 
gave it, he yielded up with Christian resignation a life full of 
years and full of honors, and a bright example to maidvind. 

" For a limited period he was a distinguished ornament of this 
bench, and the integrity, learning, and ability exhibited by him 
while he dignified the ermine of justice, are to be seen in the 
impartiality and equity of his judgments. These judgments 
remain, and are his best monuments. While the records of this 
court endure they will recall the memory of the just and fear- 
less magistrate who pronounced them, and will be esteemed as 
valuable contributions to the jurisprudence of his country. 

" We cherish his memory with affectionate recollections, and 
feel that the just tribute of the mend)ers of the bar will be 
soothing to the hearts of his bereaved family, and M-ill 1)l' an 
enduring memorial of a character truly exenq^lary in every de- 
partment of life, and one which lawyers and judges mny emulate 
with advantage. 

" As a testimonial of honor, of affection, and (.f sorrow, the 
court will order that the proceedings of the bar, with this ru- 
sponse, be entered on the minutes." 



342 BEXCH AND BAE OF MISSISSIPPI. 



WILLIAM L. HAERIS. 

"William Littleton Harris was born in Elbert County, in the 
State of Georgia, on tlie 6th of July, 180Y. He was the son 
of General Jeptha Y. Harris, and his maternal grandfather was 
Major Eichardson Hunt, both of whom were men of high 
character and influential standing. His ancestors moved from 
Virginia to Georgia prior to the American Eevolution, and left 
numerous descendants. His parents reared a family of twelve 
children, to the education of which they devoted themselves 
with such care, anxiety, and affection as to attract the admiration 
of their neighbors and friends, and inspire feelings of deep and 
lasting filial veneration. They lived to a very great age, and 
saw their children all matured and married, the father having 
attained, at the time of his death, the age of seventy five years, 
and the mother having reached the longevity of eighty-two. 

The early educational advantages of William L. Harris were 
good, and after the usual academical preparation he entered the 
University of Georgia at Athens, at the age of fifteen, and 
graduated in 1825. On finishing his collegiate course he imme- 
diately ajiplied himself to the stud}' of the law, and in 1827, being- 
yet under legal age, he was admitted to the bar by special legis- 
lative enactment, and began the practice of law in the town of 
Washington, in Wilkes County, which was included in what 
was, at that time, designated as the northern judicial circuit of 
Georgia. Among the practitioners at the bar of this circuit at 
that period were many gentlemen of eminence, ^nd afterwards 
of renown, such as Augustus B. Longstreet, Joseph H. Lump- 
kin, Garnett Andrews, William C. Dawson, Alexander Pope, 
Eobert Toombs, Alexander H. Stephens, and many others of dis- 
tinction ; yet amid this brilliant array of talent Mr. Harris rose 
rapidly in his profession, and soon achieved a conspicuous place 
in this galaxy of legal luminaries, and from whom he, no doubt, 
learned those lessons of professional vigor, devotion, and pro- 
fundity, which characterized his entire career at the bar. 



WILLIAM L. HARRIS. 34a 

But, notwitlistanding his prospects ;ind tlie position lie had 
achieved at the bar of his native State, the unlimited resources, 
unbounded prospects, and prohfic harvest of Htigation, Avhich 
had already attracted so many eminent lawyers to Mississippi, 
now presented their allurements to his andjition, and in 1S87 
he removed hither and settled in the town of Columbus. 

To this new and inviting field, which afforded a scope so com- 
mensurate with his ambition, he transported a vigorous dili- 
gence, a stern integrity, an unswerving professional faith, a *^>-e- 
nius, and a knowledge of law, which enabled him, almost at a 
bound, to take his position in the very front rank of the profes- 
sion. 

In 1853 he was elected judge of the Circuit Court of the sixth 
judicial district of Mississippi ; and in this position he admin- 
istered justice with an ability and rectitude that gave the utmost 
satisfaction and received universal admiration. 

In 1856 he was appointed by the Legislature to co-operate 
with Judges William L. Sharkey and Henry T. EUett of the su- 
preme bench in revising and codifying the laws of Mississippi, 
which was performed in a most thorough, skilful, and able man- 
ner, and which was adopted, during the next year, at a special 
session of the Legislature, and is known as the Revised Code of 
1857. 

At the expiration of his term, in 1857, Judge Harris was re- 
elected to the circuit bench, and, in 1858, he M'as elevated to the 
bench of the High Court of Errors and Appeals. 

In 1860 President Buchanan tendered to him a seat upon the 
bench of the Supreme Court of the United States, to fill the 
vacancy occasioned by the death of Mr. Justice Peter V. 
Daniel, of Virginia, but this appointment Judge Harris declined 
in consequence of the approaching and foreseen disruption of 
tlie Federal Union. He spurned the honors of an office which 
might place him in an attitude of official hostility to measures 
the adoption of which he foresaw would be the only alternative 
to the degradation of his people. 

In 1865 he was again chosen one of the judges of the High 
Court of Errors and Appeals of Mississippi, but upon the over- 
throw of the Johnson reconstruction in 1867, and the remand- 



344 BEXCH AND BAR OF MISSISSIPPI. 

ment of the State to military control and tlie malignant ven- 
geance of the Radical party. Judge Harris, together with Judges 
Handy and Ellett, the other members of the court, resigned 
his seat upon the high bench, and, resuming the practice of his 
profession, he removed to Memphis, Tennessee, and there 
formed a copartnership in law with Judge Ellett and Colonel 
James Phelan, who had late been a Senator from Mississippi in 
the Confederate States Congress, This firm, composed of men 
of such distinguished ability and reputation, enjoyed in this 
ample field every promise of a brilliant career ; but in the fol- 
lowing year. Judge Harris was suddenly attacked with a vio- 
lent pneumonia, and died, after a short illness, on the 2Tth of 
November, 1808, leaving a family of seven children, his M'ife 
having died in the preceding spring. 

The life and character of Judge Harris are kindling incen- 
tives to that honorable ambition which finds its satisfaction only 
in the distinguished performance of high public trusts, to that 
patriotism which derives more happiness from the faithful dis- 
charge of public duties than from tlie attainment of the most 
coveted private ends, and to that conscious rectitude which finds 
its reward in the commendation and applause of all good men, 
and in the smiles of Heaven which mirror themselves upon the 
unruffled surface of a clear conscience. 

When such men die it behooves us to pause and contemplate 
the instructive lessons wdiicli their lives have inscribed upon the 
great chart of human existence, for the purposes of paying 
proper reverence to their memories and of gathering up the 
noble inspirations wdiich continue to emanate from the hallowed 
tracks of departed worth. To review and record the qualities 
of one who has reaped the highest esteem of his fellow-citizens, 
is a custom wdiich finds its sanction through all ages down to 
the very depths of antiquity, and to wdiich we owe the great 
lessons of virtue, the landmarks of greatness, and the beacons 
of fame which have given light to the generations of earth, and 
pointed mankind to a higher and nobler sphere. Hence to cite 
examples of the different features of true greatness is by no 
means difficult, but to analyze and interpret the varied measures 
and varieties of qualities that enter into its composition is a task 



WILLIAM L. HARRIS. 345 

(»f diti'ereiit import, aiul wu will tiiid ourselves met by insupera- 
ble barriers at the very tliresliold of the investiujation. There 
we will tiiul (Teiiius blurring the vision with its dazzling train 
and mocking at every effort to discover its source, and by its 
side Wisdom with its Argus eyes, whose peer is far beyond the 
superficial scope of vulgar gaze. Tliere Honor's helm flashes 
an effulgence which but for its rarity would kindle a faith that 
would glorify the world ; and there is Charity, distilling her 
gentle drops into the hearts of the unfortunate, and soothing 
the festeriuir ulcers of human woes, blessins; alike him that 
gives and him that receives. Memory is there, with its tablet 
of gilded inscriptions. Perception is there, with the Sphinx 
glare of its penetrating glance ; and there is Judgment, with the 
staff of reason in one hand and the plumb-line of truth and jus- 
tice in the other. There Virtue marshals her white-robed train, 
and hallowed Piety reigns the sceptred lord of all. 

What pen can depict the characters of this gorgeous coui-t ( 
What ambassador from the realms of Metaphysics can penetrate 
its secret councils and describe its rivalries and its harmonies ? 
Surely w^e must retire from the labyrinthian threshold and await 
the denouement of the heralds of action. With this conviction 
let us return to the subject of this sketch, and confine ourselves 
to the contemplation of features whose sources we may not in- 
vade. 

As a huvyer, William L. Harris possessed every quality requi- 
site to pre-eminence. He was thoroughly familiar with the 
fundamental principles of law, and skilled in all the details 
of the profession. His quick and penetrating perception and 
sound judgment enabled him to seize at once upon the i)ivutal 
points of every question, and to gather every fact within the 
embrace of the proper legal principle, while his logical powei-s 
asserted themselves in the lucid statement of his cases, the 
clear deduction of his conclusions, and in both the analytical 
and synthetical modes of i-easoni ng. 

Subsidiary to his acknowledged abilities, he possessed a chiv- 
alric sense of honor, a stern love of justice, and a flowing senti- 
ment of sympathy which caused him to become, as it were, 
identified with his clients, and their cause became adopted as 



3^6 BENCH AND BAR OF MISSISSIPPI. 

liis own ; lience lie possessed the unbounded confidence of his 
patrons, while his dignified bearing and amiable demeanor 
gained the favor of the court, the sympathy and good-will of 
the jury, and the respect and admiration of the bar. To say 
that sncli qualifications achieved honor and success would be to 
repeat what has already become a maxim in tiie progress of this 
work, and an uncomely repetition of that which the mind of the 
reader has already embraced. 

On the bench the career of Judge Harris woukl liave adorned 
the ermine of any country, and in any age : as conscientious and 
trjiright as Lord Chief Justice Hale, he jjossessed the penetrat- 
ing vision and brilliant perception of Lord Mansfield, the 
equitable poise of Eidon, and the intuitive judgment of Hard- 
wicke. His decisions are delivered in a neat, elegant, and 
lucid manner. The scope of his judgment is always compre- 
hensive, his elucidation consj^icuous and convincing, while his 
verbiage is characterized by a fluent and chastened simplicity. 

His style is pure without ostentation, his sentences forcible 
without verbosity, his judgments impartial, and fixed immova- 
bly upon the firm foundations of law. His great familiarity 
with the leading decisions both of the American and English 
courts afforded him at all times ample precedent and analogy, 
while his own comprehensive and acute conceptions of general 
principles enabled him, with or without precedent, to apply the 
law with uneri-ing hand to the complete vindication of justice. 

But such comments may be useless, if not tedious, to the 
professional reader. The decisions of Judge Harris speak for 
themselves. They are the best monuments of his genius, the 
brightest and most durable um of his greatness ; and to them let 
the professional reader address himself for the great lessons which 
they teach — lessons inculcating the example of an able lawyer, 
a conscientious man, and a learned and upright judge. 

While Mr. Justice Harris devoted his whole life, almost ex- 
clusively, to the forum, he was a man of firm and decided 
political principles. Making his debut into manhood about the 
time of the formation of the old States Bights l>arty in Georgia 
during the year 1835, he espoused its doctrines with a devotion 
that never swerved throughout the vicissitudes of peace, war, 



WILLIAM L. IIAERIS. 347 

or reconstruction. In defeat as well as in victory he adhered 
with equal tirmness and unshaken conviction to the political 
teachings of his youth. 

On the triumph of the Black Ptcpublican party and the elec- 
tion of Abraliani Lincoln to the Presidency, he believed that 
the only hope for the Southern States was in a disruption of the 
Union, and he advised secession at all hazards, as the oidy rem- 
edy for the overwhelming evils that threatened the country. 

On the 30tli day of November, 1800, the Legislature of Mis- 
sissippi, convened under the call of the Governor, passed a series 
of resolutions authorizing and requesting the Governor of -the 
State to appoint as many commissioners as he might deem 
necessary and proper to visit each of the slaveholding States 
and inform them that the Legislature of Mississippi had passed 
an act calling a convention of the people for the purpose of con- 
sidering the existing threatening relations of the Northern and 
Southern sections of the Union, which liad been greatly aggra- 
vated by the election of a President on principles of hostility to 
the States of the South, and to solicit the co-operation of those 
States in the adoption of such measures as might be necessary 
for their common safety and defence. 

In pursuance of these resolutions the Governor appointed 
Judge Harris to visit his native State and present to the Legis- * 
lature of Georgia the resolutions and wishes of the Legislature 
of Mississippi. He repaired immediately to Milledgeville, 
where he was received with the most distinguished considera- 
tion, and, on December 15th, he delivered the following ad- 
dress before the Georgia Legislature : 

' ' Mr. President and Gentlemen of tJie Senate and House of 
Representatives of the State of Georgia: I am profoundly sen- 
sible of the dehcate and important duty imposed up^n me by 
the courtesy of this public reception. 

"Under different circumstances it would have afforded me 
great pleasure, as a native Georgian, reared and educated on 
her soil, to express to you fully the views which prevail in my 
State in relation to the great measures of deliverance and relief 
from the principles and policy of the new administration, which 
are there in progress. 



us BENCH AND BAR OF MISSISSIPPI. 

"I cannot consent, liowever, npon the very heel of your 
arduous and exciting session, to avail myself of your respectful 
courtesy to the State I iiave the honor to represent, as well as 
your personal kindness to her humble representative, to prolong 
the discussion of a subject which, however important and ab- 
sorbing, has doubtless been already exhausted in your hearing 
by some of the first intellects of your State, if -not of the nation. 

" I beg, therefore, to refer you to the action of Mississippi — • 
already submitted to your Executive — to ask for her the sym- 
pathy and co-operation she seeks for the common good, and 
briefly to suggest to you some of the motives which influence her 
conduct. 

" I am instructed, by the resolution from which I derive my 
mission, to inform the State of Georgia that Mississippi has 
passed an act calling a convention of the people ' to consider the 
present threatening relations of the Northern and Southern sec- 
tions of the Confederacy, aggravated by the recent election of a 
President upon principles of hostility to the States of the South, 
and to express the earnest hope of Mississipj)i that this State 
will co-operate with her in the adoption of efficient measures for 
their common defence and safety.' 

" It will be remembered that the violation of our constitu- 
tional rights, which has caused such universal dissatisfaction in 
the South, is not of recent date. Ten years since, this Union 
was rocked from centre to circumference by the very same out- 
rages of which we now complain, only now aggravated by the 
recent election. Nothing but her devotion to the Union our 
fathers made, induced the South then to yield to a compromise, 
in which Mr. Clay rightly said we had yielded everything but 
our honor. We had then in Mississippi a warm contest, which 
finally ended in reluctant ac(piiescence in the compromise meas- 
ures. The North pledged anew her faith to yield to us our 
constitutional rights in relation to slave property. They are 
now, and have been ever since that act, denied to us, until her 
broken faith and impudent threats had become almost insuffer- 
able he/ore the late election. There were three candidates pre- 
sented to the North by Southern men, all of whom represented 
the last degree of conservatism and concession which their 



WILLIAM L. HARRIS. 840 

respective parties were willing to yield to appease the faiiati- 
cisin of tlie North. Some of them were scarcely deemed sound 
in the South, on the slavery question, and none of them suited 
our ultra men. And yet the North rejected them all ; and their 
■Knifed voice, both before and since their overwhelming triumph 
in this election, has been more defiant and more intolerant than 
ever before. They have demanded, and now demand, equalitv 
between the white and negro races under our CoTi.stitution : 
equality in the honors and emoluments of office, equality in the 
social circle, equality in the rights of matrimony. The cry Ikis 
been, and now is, ' That slavery must cease or American liberty 
must perish,' that 'the success of Black Republicanism is the 
triumph of anti -slavery,' ' a revolution in the tendencies of Gov- 
ernment tliat must be carried out.' 

" To-day our Government stands totally revolutionized in its 
main features, and our Constitution broken and overturned. 
The new administration, which has effected this revolution, 
only awaits the 4tli of March for the inauguration of the new 
government, tlie new principles, and the new policy, ujwn the 
success of which they have proclaimed freedom to the slave, 
but eternal degradation for you and for us. 

•' No revolution was ever more complete, though bloodless, 
if you will tamely submit to the destruction of that Constitution 
and that Union our fathers made. 

" Our fatliers made this a Government for the white man, re- 
jecting the negro as an ignorant, inferior, barbarian race, inca- 
pable of self-government, and not, therefore, entitled to be 
associated with the white man upon terms of civil, political, or 
social equality. 

" The new administration comes into power under the solemn 
pledge to overturn and strike down this great feature of our 
Union, without which it would never have been formed, and 
to substitute in its stead their new theory of the universal 
equality of the black and white races. 

" Our fathers secured to us, by our constitutional Union, 
now being overturned by this Black Republican rule, protection 
to life, liberty, and property, all over the Union, and wherever 
its flag was unfurled, whether on land or sea. 



350 BENCH AND BAE OF MISSISSIPPI. 

" Under tliis wretched lawless spirit and policy, now iisiirp- 
mg the control of that Government, citizens of the South have 
been deprived of their property, and for attempting to seek the 
redress promised by the compromise laws, have lost their libertv 
and their lives. Equality of rights secured to white men, in 
equal sovereign States, is among the most prominent features of 
the Constitution under which we have so long lived. 

" This equality has been denied us in the South for years in 
the common Territories, while the North has virtually distrib- 
uted them as bounties to abolition fanatics and foreigners, for 
their brigand service in aiding in our exclusion. 

''Our Constitution, in unmistakable language, guarantees the 
return of our fugitive slaves. Congress has recognized her 
duty m this respect by enacting proper laws for the enforcement 
of this right. And yet those laws have been continually nullified 
and the solemn pledge of the compromise of 185o', by which 
the North came under renewed obligations to enforce them, has 
been faithlessly disregarded, and the Government and its officers 
set at defiance. Who now expects these rebels against the laws 
passed by their own consent and procurement-rebels against 
justice and common honesty-to become pious patriots' by the 
acquisition of power? Who now expects Mr. Lincoln to be- 
come conservative, when the only secret of his success and the 
only foundation of his authority is the will and command of 
that robber clan, whose mere instrument he is, who have 
achieved this revolution in our Government by treading under 
their unhallowed feet our Constitution and laws, and the Union 
ot our fathei-s, and by openly defying high Heaven by wilful 
and corrupt perjury ? 

''And, above all, who is it in the South, born or descended 
ot ixevolutionary sires, who so loves suck company as that he will 
long hesitate before he can obtain the consent of a virtuous and 
patriotic heart and conscience to separate from them for- 

- Mississippi is firmly convinced that there is but one alterna- 

"This^.^. ^7■m^^^ with Lincoln Black Republicans and free 
negroes, wUhout slavery, or slavery under our old constitutional 



eve} 
tive 



WILLIAM L. HARKIS. 351 

bond of union, without Lincoln Black Republicans, or free 
negroes either, to molest us. 

" If we take the former, then submission to negro equality is 
our fate. If the latter, then secession is inevitable — each State 
for itself and by itself, but with a view to the immediate for- 
mation of a Southern Confederacy, under our present Constitu- 
tion, by such of the slaveholding States as shall agree in their 
conventions to unite with us. 

" Mississippi seeks no delay ; the issue is not new. to her peo- 
ple. They have long and anxiously watched its approach. 
They think it too late now to negotiate more compromises with 
bankrupts in political integrity whose recreancy to justice, good 
faith, and constitutional obligations, is the most cherished fea- 
ture of their political organization. 

" She has exhausted her rights in sacrificial offerings to save 
the Union, and nearly all is lost but her honor and the courage 
to defend it. She has tried conventions until they have become 
the ridicule of both our friends and our enemies— mere instru- 
ments of fraudulent evasion and delay, to wear out the spirit of 
our people and encourage the hopes of our common enemy. In 
short, she is sick and tired of the North, and pants for some 
respite from eternal disturbance and disquiet. She comes now 
to you, our glorious old mother— the land of Baldwin, who first 
defiantly asserted and preserved your rights as to slavery, in the 
Federal Constitution, in opposition to Messrs. Madison, Mason, 
and Randolph, and the whole Union, except the two Carolinas; the 
land of Jackson, who immortalized himself by his bold expoenie 
and successful overthrow of a legislative fraud and usurpation 
upon the rights of the people ; the land of Troup, the sternest 
Roman of them all, who, single-handed and alone, without co- 
operation, without consultation, but with truth and justice and 
the courage of freenu.n at home on his side, defied this National 
Government in its usurpation on the rights of Georgia, and exe- 
cuted your laws in spite of the threats of Federal coerc.on-it 
is to you we come, the brightest exemplar among the advocates 
and defenders of States rights and State remedies,- to take cun- 
sel and solicit symi)athv in this hour of our common tr.al. 

" / a^h you, Shall Mlssissi^i follow in the footstej^s of 



352 BENCH AND BAR OF MISSISSIPPI. 

Georgia, when led hy her gallant Troup f ^r is it reserved for 
this generation to repudiate and expunge the brightest page in tlie 
liistory of my native State ? Impossible ! God forbid it ! For- 
bid it, ye people of all Northern and Western Georgia, who to- 
day owe your existence and nnparalleled prosperity to the main- 
tenance of your rights at the risk of civil war ! 

" I see around me some gallant spirits who bore their share 
in the dangers, and now wear with honor, here to-day, in this 
hall, the laurels won on the side of their State, under the banner 
inscribed ' Troup and the Treaty,' in that memorable struggle. 
Need I appeal to them, in behalf of my adopted State, to knov/ 
on what side they will range themselves in this struggle of right 
against usurpation, of brute force against the constitutional 
rights of a sister of. this confederacy of equal States ? I make 
no such appeal ; I know where you stand. To doul)t it would 
be to offer you the grossest insult. In this school of republican 
orthodoxy I drew my first breath. It was here I first studied, 
then embraced, and next feebly advocated, the principles of State 
rights and State remedies, of resistance to tyranny, of the 
supremacy and sovereignty of the people of a State, and the 
subserviency of governments to their peace and happiness and 
safety. These principles will descend with me to the grave, 
where this frail tenement of dust must perish, but thei/ will live 
on with time, and only perish when tyranny shall be no more. 

" I need not remind your great State that thousands and 
thousands of her sons and daughters, who have sought and 
found happy homes and prosperous fortunes in the distant 
forests of her old colonial domain, though now adoj^ted children 
of Mississippi, still cling with the fond embrace of filial love to 
this old mother of States and of statesmen, from whom both they 
and their adopted State derive their origin. It will be difficult 
for such to conceive that they are not still the objects of your 
kind solicitude and maternal sympathy. 

"Mississippi indulges the most confident expectation and 
heliefj founded on' sources of information she cannot doubt, as 
well as on the existence of causes (operating ujjon them alike as 
upon her, that every Gulf State M'ill stand by her side in de- 
fence of the position she is about to assume ; and she would 



WILLIAM L. IIAEKIS. 353 

reproach herself, t.i.d every Georgia son Mntliin licr limits would 
swell with indignation, if she hesitated to believe that Geor«na. 
too, would blend her fate with her natural friends ; her sous 
and daughters — her neighboring sisters in the inipendiui; 
strugi»:le. 

" Whatever may be the result of your deliberations, I Ijeg to 
assure her, from my intimate knowledge of the spirit and aftec- 
ti(ms of our people, that no enemy to her constitutional rights 
may consider his victory won while a Mississippian. lives to pro- 
long the contest. ' Siidv or swim, live or die, survive or per- 
ish,' the part of Mississippi is chosen : she will never submit to 
the principles aud policy of the Black Re])ublican adiuiuistra- 
tion. 

" She had lather see the last of her race — men, women and 
children — immolated in one common funeral pile than see tliem 
subjected to the degradation of civil, political, and social 
equality with the negro race." 

The Legislature of Georgia appointed a committee to request 
of Judge Harris a copy of this address, and ordered it to be 
printed, together with all the proceedings attending his recep- 
tion. 

It may not be improj^er in this place to observe that, notwith- 
standing the patriotic glow and sound orthodoxy which pervade 
this speech of Judge Harris, it exhibits, in regard to the real 
and paramount issues of the great struggle, a misconception 
which characterized the views of most of the distinguished men 
of the South. The very feature which he seems to dread and 
abhor above all others — the forced equality of the races — was the 
only impossible phase of the contest, and one which, so far as 
social equality is concerned, resulted in a direction entirely op- 
posite to his fears. The Southern people seem never to have 
fully comprehended the nature of the civil war which they 
waged for four years with a vigor and determination uevei- be- 
fore witnessed by this world. 

The slavery question. was made a hood to blind the eyes of 
all true lovers of liberty in both sections of the country. Tpon 
this ground the Southern people were induced to take issue ; 
and here all the elements of the strife were gathered, whlK' in 



/ 

354 BENCH AND BAR OF MISSISSIFt>L 




the background stood the Itepubhcan leaders plattiiiing a revohi- 
tion of the entire system of government. Thfc real issne was 
an obliteration of the doctrine of States rights^ and a transfer of 
all sovereignty, practically, to the General Government. They 
well knew that the power on the part of the Federal Govern- 
ment to make war upon the States was an assumption of all 
other powers, and that a paramount allegiance to that govern- 
ment being once admitted, the revolution would be complete ; 
the full sovereignty of the National Government would be 
established ; there eould be no iinperium in imperio^ and the 
States would virtually become mere police districts, with noth- 
ing but mere police powers. 

But not even these escaped invasion. The States were robbed 
of their control of the qualifications of suffrage and the man- 
agement of elections, and both public and j^rivate institutions 
were for a time actually forced into subserviency to the views 
of the party in possession of the National Government. 

With the lights now before us the aspect becomes almost in- 
conceivable when we look back to the confined views of our most 
distinguislied men in regard to the issues involved in the war. 

If Judge Harris could have then seen w^hat he lived to dis- 
cover — that the contest on the part of the Federal Government 
was really for consolidation and complete sovereignty — his 
noble arguments in defence of secession would have assumed a 
more comprehensive scope, and his predictions would have been, 
if possible, of a more serious nature, so far as they would have 
affected a greater number of people. Such an issue, if foreseen 
and presented with the same ability as were the horrors of negro 
freedom, would have aligned thousands, who fought on the 
other side, in the ranks of the Confederacy, and thousands of 
others who remained neutral from a misapprehension of the true 
nature of the conflict. This issue was by no means a mere col- 
lateral and incalculable result, but was, from the first, the logic 
of the teachings and the gist of the doctrines of the liadical Ee- 
publican party; but it was smothered, first by the cry against 
slavery, and then, after the heart of the South had become fired 
M'ith resistance to the assault upon their institutions, it was 
drowned in the cry for the preservation of the Union. 



WILLIAM L. HARRIS. 355 

To this Union, so long as it moved in the orbit in wliicli it 
was projected, no patriot was more devoted tlian Jmhra William 
L. Harris. He gloried in its greatness and power, and in the 
wisdom of its Constitution, which he had thoroughly mastered. 
He comprehended fully all its features and understood all tlieir 
bearing and import. And had he accepted tlie position offered 
him as one of the judges of the Supreme Court of the United 
States, his patriotism, his political integrity, and his ability as a 
constitutional lawyer, added to his other qualifications, would, 
doubtlessly, under ordinary circumstances, have rendered liim 
pre-eminent among the great jurists who have occupied that 
bench, and his constitutional interpretations would have had a 
conservative weight and a benign influence upon the welfare 
of the country. 

Judge Harris was a man of amiable disposition. He possessed 
a flowing warmth of friendsliip and kindness, an unassumed and 
polished courtesy, and a patent sincerity, that attracted the re- 
spect and admiration of every circle. He was just and uniform 
in his estimate of virtue. There were none so high as to escape 
the exactions of his measure of propriety, and none too low to 
feel the warmth of his sympathies. 

His liberality was bounded only by his means of exercising it, 
and, notwithstanding a lucrative practice and the temptation to 
accumulate wealth, the idea of gain was to him a matter of sub- 
ordinate consideration. This was perhaps due, in a great meas- 
ure, to his abomination of mere gloss and superficiality. He 
was exceedingly matter of fact and unostentatious in his man- 
ners, and this feature of his character was manifested to a re- 
markable degree at the very close of his Hfe. A few moments 
before he expired he turned to Dr. Mann, who was present to 
whisper in his ear the last consolations of religion, and said, 
" Perform for me the last funeral rites ; but I beg that whatever 
you may have to say, let it be plain and simple." 



23 



356 BENCH AND BAK OF MISSISSIPPI. 



EPHRAIM S. FISHER. 

Epliraim S. Fisher was born near Danville, Kentucky, on 
the 15th of November, 1815, and was educated in the college 
at that place, in which his proficiency was marked by rapid 
progress. He early manifested a thirst for knowledge and an 
aptitude in its acquisition which gave unmistakable assurances 
of liis destiny. So moral and assiduous was his deportment and 
so scholarly his attainments, that while yet a student he was 
employed as an assistant tutor. On retiring from college he 
engaged in teaching a country school, and, having determined 
to prepare himself for the bar, pursued the study of law during 
the intermissions of his preceptorial duties. 

In 1833, impelled by an ambition alert for more flattering 
prospects, he emigrated to Mississippi, and resided for some 
years in Vicksburg, where he became connected with the clerk's 
office, and at the same time pursued his legal studies under the 
instruction of Joseph Holt. In 1838 he obtained his license 
from the High Court of Errors and Appeals, and imme- 
diately entered upon his brilliant professional career at the 
bar. He jjractised, however, only about one year in Vicks- 
burg, and in 1839 removed to North Mississippi and located 
at Coffeeville. Here he entered at once upon a large and 
remunerative practice, which was interrupted only by the 
popular demand for his political services. He was elected 
to the Legislature, but, having served one term, declined the 
re-election offered him , and devoted himself exclusi ^^ely to his 
profession. About this time he married Miss Martha A. 
Towns, an estimable lady, the accomplished daughter of Colo- 
nel Armistead Towns, a wealthy and genial planter of Yalo- 
busha County. They reared a large and interesting family, of 
whom five daughters and two sons, and their mother, are now 
living. The professional success and popularity of Mr. Fisher 
continued to increase until he occu[>ied an eminent position at 



EPIIRAIM S. FISHER. 357 

the bar, and in 1851 was elected to tlie bencli of the Iligli 
Court of Errors and Appeals, which position he held until a 
short time prior to the civil war, when he resigned and returned 
to the bar. Judge Fisher was opposed to the policy of seces- 
sion. He had always been a Clay Whig in politics, and depre- 
cated the idea of a dissolution of the Union. He seemed to 
have a premonition of the consequences, and a prescient esti- 
mate of the terrible results that would attend its failure ; but 
when he saw the irresistible tide sweeping over the country, he 
accepted the situation and threw himself into the current. He 
voted for Mr. Davis to be President, and during the war ac- 
cepted a colonelcy in the Home Guards, and took an active 
part in enlisting the old men for the purpose of encouraging 
the people. 

In 1865 he was nominated for Governor of Mississippi by 
the Constitutional Convention. He was at that time attending 
to some professional business in Washington, and returned to 
Mississippi only a few days before the election. This circum- 
stance and 'the indifference he manifested in regard to the office 
were fatal to his chances of obtaining it. He, no doubt, saw, 
while in Washington, the humiliating attitude in which the 
party controlling the Federal Government was preparing to 
place the sovereignty of Mississippi, and was reluctant to ac- 
cept a position which he foresaw would be fraught with so 
much responsibility and vexation. 

After the war Judge Fisher resumed the practice of his pro- 
fession, but in 1869 was appointed by Governor Alcorn to 
the bench of the Circuit Court. In 1876 he removed to Texas 
and located in Georgetown, where he continued the practice of 
law in copartnership with one of his sons, but died suddenly a 
short time afterwards. Mr. Wirt says of the distinguished 
Robert Goodloe Harper that, while apparently in good health, 
standing before the fire, and reading a newspaper, '' He 
dropped down dead ;' ' and the death of Judge Fisher, which 
occurred on the night of the I'ith of October, 1876, took place 
under somewhat similar circumstances. He had just partaken 
of a hearty supper with his accustomed prandial joviality, and 
was sitting by the fire discussing in a gleeful manner with his 



358 BENCH AND BAR OF MISSISSIPPI. 

son the logical triumph of the open letter of Hon. Jeremiah 
Black to Mr. Garfield, which had just appeared, and then turn- 
ing to his son, who had but a moment returned from an attend- 
ance on court, requested him to go in to his supper and re- 
turn quickly ; that he had some important business to transact 
with him, alluding to a case in which they were employed. 
His son finished his supper, and calling to his father, who had 
walked out on the portico, announced himself ready. The 
Judge re-entered the room, and suddenly placed his hand upon 
his forehead. His son inquired the cause of his agitation. He 
replied that he felt a severe pain over the eye, and laid down 
on the bed, but became immediately unconscious, and died 
within an hour. 

Judge Fisher was thoroughly familiar with legal science. 
His mind eagerly grasped the great principles of his profession, 
and he delighted in unfolding their intricacies and applying 
them untrammelled by technicalities to the promotion of the 
ends of justice. He considered that fundamental principles 
were the best criterion and measure of justice, and he found 
in them an embrace for every legal right which fact or circum- 
stance could engender ; hence he made them the standard of 
his policy at the bar and of his opinions on the bench. He 
was quick and adroit in the detection and disposal of technical 
ruses and logical subtleties, and in grasping the true points in- 
volved in obscure and diflicult questions. He was searching 
and accurate in his discrimination of applicable law, and vig- 
orous and clear in advocating his convictions and setting forth 
his conclusions. His decisions are characterized by a depth 
of learning and a glow of conscience, and while they disjjlay no 
rhetorical efforts, they are logical in method, chaste in style, 
and lucid in argument. 

The career of Judge Fisher, both at the bar and on the bench, 
presents a uniform example of lofty purpose, conscientious 
dealing, and punctilious devotion to duty. Nothing could 
swerve him from the solida mens of conscious integrity, and 
while he may not have had any one professional feature of 
transcendent brilliancy, he possessed that admirable poise of 
qualities and exact adjustment of qualifications which rendered 



EPHRAIM GEOFFREY PEYTON. 359 

his character conspicuous and attractive from every j)oint of 
observation. He was noted for the warmth of his kindness 
and the flowing generosity of his disposition, and while liis 
learning, urbanity, and candor received the tribute of esteem 
from the members of the bar and his associates on the bench, 
his sincerity and honesty gained for him the respect of all 
parties and of all classes of people. 



EPHRAIM GEOFFREY PEYTON. 

This upright and eminent judge was born nearElizal)ethtown, 
in tlie State of Kentucky, on the 29t]i of October, 1802. To 
this place his ancestors had emigrated from Virginia, where they 
could trace their origin back to the earliest settlement of the 
Old Dominion, and indeed far away in the annals of English 
history. At an early age young Peyton was sent to the college 
at Gallatin, and was there joined by his cousin, the distinguislied 
Colonel Bailie Peyton, who was a youth of about the same age. 

At the age of seventeen young Peyton left college, and in 
company w^ith an older brother emigrated to Mississippi in 
search of fortune and a home. His brother was ambitious of 
achieving distinction as a lawyer, but on reaching Natchez they 
found their means so nearly exhausted that they were compelled 
to seek a livelihood by different modes. Ephraim became a 
printer's boy, in which capacity he served until he had earned 
means sufficient to renew his search for more congenial and 
favorable prospects. This he soon partially achieved, in obtiun- 
ing a small school in the forests of Wilkinson County, near 
Woodville. Here he maintained himself and at the same time 
studied law until, having acquired a sufficient knowledge of its 
principles, he proceeded, in 1824-5, to Natchez, where the Su- 
preme Court of the State was then sitting, and after the most 
rigid examination of those times was admitted to the bar as one 
of three among twelve applicants. Having obtained his license 



360 BENCH AND BAE OF MISSISSIPPI. 

he filled his saddle-bags with law-books, and going forth, pene- 
trated into the wilds of the interior in search of a suitable loca- 
tion. In this plight he arrived at Gallatin, the seat of justice 
of Copiah County, where the court was held in a log-cabin. 
Here he began his career as a lawyer, and^soon afterwards, by 
means of his professional income, established a mercantile 
house at Grand Gulf on the Mississippi ; and while engaged in 
this dual vocation he married Miss Artemisia Patton, the daugh- 
ter of a wealthy and influential planter of Claiborne County. 
He now settled j3erraanently at Gallatin, and there were all his 
children born, fourteen in number, but nine of whom reached 
the age of their majority. 

Mr. Peyton had also, prior to his marriage, embraced the error 
common to most young lawyers of ability and promise, and 
allowed himself to be diverted by the allurements of politics. 

" As I now recollect," says the Hon. Albert G. Brown, " I 
first saw Mr. Peyton on the 4:th of July, 1826, more than fifty 
years ago. He was then a young and very handsome man. 
The occasion was the celebration of the national anniversary. 
The place was a grove, near the centre of where the old towD of 
Gallatin once stood. The guests of note were the then candi- 
dates for Governor and Lieutenant-Governor. To my boyish 
mind he seemed to be a splendid specimen of humanity, and 
when in riper years I came to know him better, 1 found no 
occasion to change that opinion. 

' ' Mr. Peyton was the orator of the day. All that I recollect 
of it is that his speech was highly applauded. The candidates 
and the people gathered around him, and seemed by their con- 
gratulations to indicate that he had made a great speech. In 
the evening he was hoisted by an enthusiastic multitude on a 
table, and announced himself as a candidate for the Legislature. 
When the votes were counted at the election, it was first sup- 
posed that he had been chosen, and his friends were wild with 
enthusiasm. But on a closer count it was found that he had 
been beaten by a tally of five votes. The next year he was a 
candidate again, and was chosen without serious opposition. 
He served a single term in the Legislature, and after that per- 
sistently refused to compete for any political ofiice. ' ' 



EPIIRAIM GEOFFEEY PEYTON. 361 

In 1839, however, Mr. Peyton was elected District- Attorney 
for what was then the fourth judicial district, and was re- 
elected several times to the same position, until, worried with 
the duties of the office, and desiring to return to general prac- 
tice, he resigned in the midst of a term, very much to the regret 
of the people, who fully appreciated his efforts towards maintain- 
ing the dignity and efficiency of the laws, in the ]>reservation of 
order and the prevention of crime. The election of Mi-. Pey- 
ton from this district, which was intensely Democratic, was a 
noble tribute to his ability as a lawyer and his integrity as a 
man, paid him regardless of his political principles, which were 
those of the Whig party, and of which he was a warm and un- 
swerving advocate. 

He was bitterly opposed to the policy of secession, and his 
lifelong antipathy to the measures of Democracy arrayed him 
after the war in the ranks of the Repul)lican party, in which his 
great abilities brought him at once to the front rank, and in 
1808 he was appointed by Governor Alcorn a judge of the 
Supreme Court of Mississippi. In 1870 he was chosen Chief 
Justice of the State, which position he held until the expulsion 
of his party from power by the election of 1875. 

Chief Justice Peyton wiis a profound and accomplished law- 
yer. He had, from his tirst adoption of the profession, studied 
law in the most scientific and scholarly manner, and his success 
at the bar was the just fruition of eminent ability and standi 
integrity. So assiduous was his application that it is said by 
Hon. A. G. Brown, m-Iio read law under him and wjis well 
acquainted with his habits and characteristics, that for fifty 
years he studied law each day as if he was preparing to be ex- 
amined for the bar on the next. 

During all these years of devoted labor, throughout the ex- 
tended scope of his professional sphere, amid tlie multiplied 
concerns of a busy life and tlie varying fortunes of his ])arty 
and people, he preserved a spotless integrity and stainless 
honor. 

His political opinions were grounded in the depths of convic- 
tion, and his policy was cast in the mould of long-cherished prin- 
ciples ; and however antagonistic they may have been to the in- 



362 BENCH A:N"D BAK OF MISSISSIPPI. 

terest of his people, not a breath of suspicion ever sullied the 
sincerity and honesty of his motives. 

His mind was vigorous and active, and, in addition to its large 
stores of legal learning, possessed resources gathered from every 
branch of science. While he delighted to delve in the rugged field 
of his profession, his sentimental nature and refined taste gath- 
ered the gems of romance and the flowers of aesthetics ; yet his 
imagination never led him to neglect the realities of life for the 
mere visions of fancy. His attention was attracted but not be- 
guiled by that literary curiosity which often allures a man of 
genius from his chosen pursuit and engages his powers in the 
wasting diversions of inutility. Capable of great application, 
and full of the ardor of a versatile genius, he devoted himself 
with severe restraint and indefatigable zeal to the attainment of 
all useful and refining knowledge. He spent a large portion of 
his earnings for books, and at the time of his death his law and 
miscellaneous library was valued at many thousand dollars, and 
was said to have been the most comj^rehensive and best selected 
private library in the State. This advantage, in view of his as- 
sidious habits of study and investigation, accounts for tlie super- 
abundant resources of precedent and the ready familiarity with 
legal history, which he exhibited in his contests at the bar. 

But it was as a judge of the Supreme Court that he won his 
brightest laurels. It was here that his fearlessness of character, 
his uncompromising regard for truth and justice, and his exten- 
sive knowledge of law, were most strikingly exemplified. He 
blended, in an admirable manner, the stern features of the judge 
with the sympathetic attributes of the philanthropist. The 
warp of his justice was woofed with mercy, and the rigorous re- 
quirements of law were tempered with the gentle mandates of 
equity. His decisions will remain a more noble and enduring 
monument of his ability and integrity than any that could be 
outlined by the pen of history or constructed by the skill of art. 

He occupied this position during a period when many novel 
questions arose pertaining to the attitude of the State towards 
the General Government, which the leaders of his party claimed 
to have been radically changed by A'irtue of secession and the 
result of the war. While in this respect his opinions may 



EPHKAIM GEOFFREY PEYTON. 363 

not have met the approbation of those who took a purely his- 
torical view of the fabric of our Government, yet his judicial 
purity, his unblemished personal character, his great learning, 
and uniform prudence and rei^ularity of conduct, gained the gen- 
eral confidence of his fellow-citizens at a time when the vicious 
attitude of his party in Mississippi kindled the fires of partisan 
animosity throughout the State. 

His integrity was sustained by an unfailing physical as well 
as moral courage. Whatever his conscience dictated or his 
judgment approved he dared to maintain, and was fierce in his 
resentment of the least assault upon his honor or invasion of his 
dignity. While he was Chief Justice, he was approached on 
one occasion by the notorious Adelbert Ames, then Govenior of 
Mississippi, who visited him privately for the purpose of induc- 
ing him to exercise an influence over his son, who was one of 
the chancellors of the State, in his decision of a case in which 
the Governor felt himself interested. The Chief Justice spurned 
the corrupt overture with the most violent indignation, and 
ever afterwards hated both Ames and his administration. 

After his retirement from the supreme bench, in the fall of 
1875, he sought refuge from the rugged field of long labors and 
the asperities of his public life in a home sweetened with re- 
pose, but lighted only by the smiles of filial affection, his wife 
having died some years previous. Plere he gave his time to 
parental devotion and to the examination of revealed truths, to 
which he gave his hearty assent. But old age and decrepitude 
had now laid their inexorable grasp upon his frame, and, grad- 
ually bending beneath their weight, he died in Jackson, on the 
5th of September, 1876. 

While his latter days were embittered by the estrangement of 
his old friends and the assaults of political enemies, yet no sooner 
is he laid away in the grave than all pohtical animosity is sunk 
beneath the wellings of veneration, and reflecting now only upon 
his great ability as a judge and his merits as a man, 

" His friends, estranged but yesterday, in sorrowing awe return 
To gather up his greatness into history's golden urn." 

At a meeting of the members o;f the bar of Copiah County, at 
Hazlehurst, convened to pay a tribute to his memory, the com- 



364 BENCH AND BAK OF MISSISSIPPI. 

iiiittee ajjpointed to draft an expression of their feelings, which 
was composed of his okl associates and neighbors, in the pream- 
ble to their resolutions said : 

" In his family he was remarkable for his kindness, indul- 
gence, and generosity, and was the pattern of propriety. His de- 
portment in society, at the bar and on the bench, was marked 
at all times with that graceful courtesy that distinguishes the 
gentleman of culture and refinement. lie was a generous 
friend to the young practitioner, and extended to him that con- 
sideration which encouraged to studious application to the 
learned profession in which he had embarked, and to which the 
accomplished judge had devoted himself, through so many 
years of toil, with that distinguished success which has enrolled 
his name in the rank of the most learned jurists of his age ; and 
we may add, that the firmness, decision, and stern integrity of 
the lamented late Chief Justice, who disrobed himself of the er- 
mine as he had put it on, pure andundefiled, are not less worthy 
of admiration and emulation than his profound knowledge of 
the law." 

His moral heroism displayed itself in every sphere of his life, 
and seemed always equal to any emergency that might drop 
from the hand of fate. In the great crash attending the fail- 
ure of the Brandon Bank he lost almost his entire fortune, con- 
sisting, it is said, of near a hundred thousand dollars, and was 
left laden with heavy and pressing debts, from which his friends 
advised him to seek refuge in bankruptcy ; but he repelled the 
idea, and resolved to pay his entire indebtedness, both princi- 
pal and interest. This his industry and vigor in the manage- 
ment of his aifairs, seconded by his clear-minded and devoted 
wife, enabled him finally to effect — a circumstance to which he 
often referred with pleasure and pride in the latter days of his 
life. 

This heroism of his character was strikingly exemplified on 
his bed of death, when his accomplished youngest daughter, 
who had been accustomed to reading to him, repeated those 
beautiful words from Addison's Cato : 

" 'Tis uot iu mortals to command success ; 
But we'll do more, Semprouius : we'll deserve it."^ 



EPHEAIM GEOFFEEY PEYTOISr. 365 

"The tears," says she, "gathered and fell with the emotions 
that swayed through his being." And tliiis his last words 
and last thoughts were lost in the grand and the unutterable. 

The venerable and distinguished Colonel Bailie Peyton says : 
" The last time I saw my cousin Ephraim was when we were 
together within the college walls. He was studious, talented, 
and advanced in learning beyond those of his years ; full of 
order and system in whatever he did ; and, as 1 recollect, his 
handwriting was like copperplate. But above all was he noted 
for his brave, candid, and honorable nature, as being in him- 
self the mirror of truth ; courteous to all, generous, chivalrous, 
peculiarly sensitive and high-wrought at a point of honor, vet 
in the calms of his strong nature, none were more tenderly con- 
siderate and sympathetic." 

These traits, which so remarkably distinguished his youtli, 
relaxed nothing of their grasp upon his nature as he advanced 
in years. If they were roughened and rendered more rugged 
by the rude clashings and asperities through which he wrought 
his after life and his eminence, they were also chastened l)v the 
growth of a well-balanced mutual influence and by the reins of 
a riper judgment. It was the same character acted upon by 
the sweets and acids of a busy life and tempered in the furnace 
of experience, the same blent Imlk of qualities expanded and 
rounded by the breath and spirit of development. He united, 
to a wonderful extent, those extremes of humanitv, a rigid firm- 
ness and a deep sympathy, yet where they met together there 
was no discoverable point of weakness. His character was a 
clear, well-defined arching over and blending of virtues that 
constitute the philanthropist and the stern judge ; and he went 
down to his grave not only full of years but full of honors. 



366 BENCH AND BAE OF MISSISSIPPI. 



COLLIN S. TARPLEY. 

Collin S. Tarpley was born in the city of Petersburg, State 
of Virginia, in the year 1802. His father, having failed in busi- 
ness, determined to seek a reparation of his fortunes in the 
West, and before Collin had reached his tenth year the family 
removed to Nashville, Tennessee, where its circumstances were 
such that his mother, who was a lady of education, was com- 
pelled to aid in its support by teaching school. By this means 
she was enabled to send her son, who had been prepared chiefly 
under her tuition, to Cumberland University. But on the re- 
moval of the family soon afterwards to Giles County, the pov- 
erty of his parents was such as to preclude him from any further 
prosecution of his studies than that which he could accomplish 
at night, and during such recreations as the labors of the field 
v/ould permit. During the winter of 1819, however, he was 
again enabled to attend school by walking a distance of five 
miles, carrying his blankets and provisions with him on each 
Monday morning, and remaining in the vicinity of the school 
during the week, studying at night by the light of torches, and 
sleeping upon the hard floor ; yet under these severe circumstan- 
ces his industry and assiduity enabled him to maintain a position 
at the head of his classes and win the first honors of the 
school. 

On reachiug the age of manhood, he taught school for a year 
or two, as a financial necessity, and then entered the law office 
of Governor A. V. Brown and James K. Polk, who were at 
that time partners. These gentlemen afforded him great aid, both 
in his studies and in pecuniary matters, which enabled him to 
establish himself in practice. He located his office in the town 
of Pulaski, where he resided until about the year 1831, and then 
removed to the town of Florence, in Alabama. Here he became 
associated with the Hon. John McKinley, afterwards one of the 
judges of the Supreme Court of the United States. His practice 



COLLIN S. TARPLEY. 3G7 

was large, and he enjoyed every prospect of eminent success ; 
but Mississippi was extending her inviting arms and presenting 
unusual fields for lucrative practice, and in 1836 Mr. Tarpley 
removed to this State and settled in Hinds County, where he 
formed a copartnership with Judge Taylor. Here he entered at 
once upon a large practice in the High Court of Erroi-s and Ap- 
peals, in the Superior Court of Chancery, and in the Federal 
courts. It is said that in the spring of 1838 his firm instituted 
near a thousand suits, one half of which were brought in the 
Federal courts, and consequently involved an amount exceeding 
$500 each. 

On the resignation of Chief Justice Sharkey, in 1851, Mr. 
Tarpley was appointed by Governor Whitfield to fill the va- 
cancy on the bench of the High Court, which position he ac- 
cepted ; but in consequence of the right of the Governor to 
make the appointment being questioned, he resigned soon after- 
wards and resumed his practice at the bar. 

As a lawyer, Judge Tarpley was eminent both for his pro- 
found learning and great success. His mind was vigorous and 
grasping ; was searching, retentive, and logical, and his energy 
was active and indomitable. His oratory was generally plain 
and didactic, but forcible and impressive, and his arguments 
were weighty with learning and practical thought. 

He was imbued with a deep sentiment of philanthropy and 
public-spiritedness, and his enterprise extended to every impor- 
tant interest and public concern. He delighted in projects for 
the advancement of the public weal and the elevation of society, 
and took an active interest in the progress of agriculture and in 
railroads. In his speech before the Shelby Coimty, Tennessee, 
Agricultural Association, in 1859, he uttered a glowing pane- 
gyric upon the elevating character of agricultural pursuits, and 
made a strenuous appeal to Tennesseeans for the conversion of 
the Hermitage, the home of Andrew Jackson, then the prop- 
erty of the State, into an agricultural college. " Let the Her- 
mitage, then," said he, " be turned into a great agricultural col- 
lege, organized and sustained as a State institution, where the 
youth of Tennessee may not only learn to admire the military 
glory, but imitate the no less useful domestic virtues of the sage 



368 BENCH AND BAE OF MISSISSIPPI. 

whose spirit presides over and hallows its sacred precincts ; 
where they may learn the most ancient and least understood of 
all the arts — that of tilling the soil upon scientific principles." 

Judge Tarpley was the originator of the scheme for the New 
Orleans and Jackson Eailroad, drafted and procured its charters, 
devoted his time and talents towards the organization of the com- 
pany, and was at the time of his death one of its hoard of direct- 
ors. He lived to see the project which he was the first to con- 
template, and which was scouted as the dream of a visionary, 
grow into a great thoroughfare, and extend from New Orleans to 
the Ohio. 

In politics Judge Tarpley was an ardent Democrat. He was 
a member of the Baltimore Convention of 1852, and was en- 
thusiastic in support of the i^rinciples of his party. While he 
was devoted to the Union as it was made by our forefathers, he 
was far from counselling submission to wrong in order to pre- 
serve it. "Better," said he, "to shiver the Union into a 
thousand fragments, and trust to Providence, and the intelh- 
gence and patriotism of the people for the formation of a better 
one, than to become the slaves of the stronger section, and to feel 
ourselves to be inferiors when we have heretofore stood as 
equals. 1 counsel no such craven spirit of submission as this." 

But, happily, Judge Tarpley did not live to see the ruin wdiich 
was then pending over his country. He died in the spring of 
1860, ere the dismal clouds had heaved in view. And if it be, 
as Lord Mansfield says, ' ' that death never comes too soon to 
him who falls in defence of the liberties of his country, ' ' surely 
it comes not too soon to the patriot when it closes his eyes to the 
vision of their overtlirow. 

Judge Tarpley possessed a keen taste for literature. Some of 
his contributions to periodicals upon the subjects of agriculture 
and railroads were republished in jmraphlet form and largely 
circulated ; and in 1851 he wrote and published in pamphlet 
the life of Colonel Jefferson Davis, whom he at that time 
strenuously advocated for Governor of Mississippi. 

He took a deep and active interest in the affairs of the Church, 
was a warm Methodist, and steadfast in his faith. His Christian 
and moral virtues were in full counterpoise with his intellectual 



COLLIN S. TARPLET. 



309 



traits, and while the latter gave him eminence as a lawyer, the 
former shaped the character of the man. The following resolu- 
tions were adopted by the bar of the High Conrt on the^occasioii 
of his death : 

" The members of the bar of the High Court of Errors and 
Appeals have received with profound regret the sad intelligence 
that another of their number has been taken away. 

' ' Before reaching the period fixed by the Psalmist as the limits 
of human life, Collin S. Tarpley was cut do^ni, in the full 
strength of his intellect and the vigor of mature manhood. For 
nearly a quarter of a century he was a member of this bar, en- 
joying the respect of all for the high order of his talents, his 
varied legal attainments, and his Idndly courtesy towards his 
associates. 

"Beginning life without the adventitious aids of fortune or 
family influence, Collin S. Tarpley, by his intellectual aequire- 
ments, persevering energy, and courteous manners, attained a 
prominent position in Mississippi as a lawyer, a politician, and a 
citizen ; and now that the grave has closed over him, his associ- 
ates at the bar desire to pay the last tribute of respect to the 
memory of a deceased brother, who, during his whole career, 
bore himself towards them with the kindly courtesy of a Chris- 
tian gentleman ; and, to that end, they 

" Jiesolved, That in the decease of Collin S. Tarpley the State 
of Mississippi has lost one of her worthiest and most valuable 
citizens, and this bar one of its most eminent and able members. 

^' liesolved/ifrther, That the members of the High Court of 
Errors and Appeals be requested to accompany the members of 
the bar to the funeral of their deceased brother as a mark of 
respect to his memory. 

'-'' Furtlier resolved, That they sympathize with the family of 
the deceased in their great affliction, and tender to them heartfelt 
condolence of friends who know and feel their loss. 

''^Further resolved, That these proceedings be ])rcsented to 
the High Court of Errors and Appeals, in open court, with a re- 
quest that they be spread upon the minutes, and that they be 
published in the city papers, and a copy be furnished the family 
of the deceased. " 



CHAPTER Xr. 



TflE BAR— EMINENT LAWYERS— 1832-1880. 

AMOS R. JOHNSTON JAMES T. HARRISON JOHN B. SALE WILLIAM F. 

DOWD. 



AMOS E. JOHNSTON. 

One of tlie noblest commentaries upon American institutions 
is the facility wliieli tliey afford to genius and rectitude for 
rending the clouds of obscurity, for bursting from the most 
adamantine gyves of condition into the glare of honor and the 
full round orb of fame. Fate has here no iron bed upon which 
its victims, like those of Procrustes, are bound and fitted by the 
fiat of unalterable decree. Here genius, once fledged in the nest 
of morality, leaps forth like a young eagle from its eyrie, and 
spreading the wings of resolution, soars away to the heights of 
its ambition and capability. Here honor demands no glittering 
annorial, wealth no splendid heirlooms of inheritance, and emi- 
nence no in'lde of pomp or lictorial badge. Here fame requires 
no arbitrary circumstances, depends upon no golden opportuni- 
ties, and exacts no impersonal qualifications ; but only that he 
who would reach its realms shall be guided by the beacons 
which it has established along the sacra via of its glory. 

Many of our most distinguished citizens began life under the 
most unfavorable circumstances, and it is with the superlative 
pride of patriotism that we point to our Franklins, our Clays, 
and our Stephenses as the peculiar and legitimate fruit of our 
state of society, which none but the tree of liberty could have 
blossomed and matured in spite of the blasts that beat upon 
the opening buds, and of whose fame the compass of space, 
24 



372 BENCH AND BAK OF MISSISSIPPI. 

like the terminal god of the Romans, has no arms to mark the 
bounding fhide. 

There were also many eminent gentlemen of the Mississippi 
bar who, as we have seen, could trace their beginning to a 
period when they stepped upon the stage of life the appren- 
ticed architects of their own fortune, and with no tool but their 
talents and no whet-rock but their integrity, constructed the 
ladder of their own eminence. Among these was the subject of 
this sketch. 

Amos R. Johnston was born in the State of Tennessee. His 
scholastic advantages were scanty, and his early education was 
obtained principally in the office of a country newspaper ; but 
so vivid M'as his aptitude, and so strenuous were his diligence 
and application, that he was soon enabled to ascend the tripod ; 
and having established a paper in a small village in Henry 
County, in connection with the afterwards, famous General Zol- 
licoffer as a partner, he became at an early age a political writer 
of repute in the Western District. 

About the year 1830, Mr. Johnston emigrated to Mississippi 
and took up his residence in the town of Clinton, where he 
resumed his editorial pursuit, and at once achieved a prominent 
position. Clinton was at that time the centre of wealth and 
influence, and from this point he effectively promulgated the 
staid and conservative doctrines which characterized through 
life his public conduct and pohtical creed. Though originally 
a friend and supporter of General Jackson, he soon abandoned the 
Democratic party and became an energetic, determined, and 
uncompromising leader of the old Whig party. 

In 1836 he represented Hinds County in the Legislature, in 
which he colleagued with Messrs. Prentiss, Guion, Tompkins, 
and other leaders of that party, and was one of the most effi- 
cient and influential advocates of its measures. 

He strved but one term in the Legislature, and about this 
time removed to Jackson, where he continued his editorial 
labors until the year 1839, when he was elected clerk of the 
Circuit Court of Hinds County, and from that time his connec- 
tion with the press ceased. He then established his residence 
at Raymond, the seat of justice of the county, where he resided 



AMOS R. JOHNSTON. 378 

until the year 1865, when he again removed to Jackson, and 
there abided until the time of his death. Mr. Johnston served 
two terms as clerk of the Circuit Court, and was in 1845 elected 
Probate Judge of Hinds County, and held tliat office for three 
terms. It was during the period of his clerkship tliat he turned 
his attention to the study of law, and the legal proficiency 
which his genius and assiduity acquired during that time, bur- 
dened as it was with his official duties, was eminently indicated 
by the efficiency and popularity of his career as Probate Judge 
of the county, in which office his conscientious integrity and 
scrupulous exactness in the administration of matters pertaining 
to that court gave him a reputation for uprightness which was 
enlarged in every sphere of his life, and which grew with his 
advancing years. 

In 1851 Judge Johnston was elected, in the heated canvass of 
that period, a member of the convention convened to determine 
the course of Mississippi in regard to the Compromise measures 
of 1850, and in that body strenuously advocated acquiescence 
and the preservation of the Union, which he deemed paramount 
to every other consideration. He was opposed to the doctrine 
of secession, and seemed with prophetic eye to foresee in that 
movement a terrible civil war, the final overthrow of the South, 
and the train of woes that would inevitably follow ; and through- 
out the fierce preparation and fiery ordeal his voice, if not 
heeded, was respected as that of one whose love for his State 
and section, and whose fidelity to what he conceived to be the 
true interest of his people, were wholly beyond the reach of 
doubt and above all question. 

Judge Johnston was too ardently devoted to his profession to 
have much relish for the scramble for office and the fickle 
honors of political preferment. At one time he was solicited 
by his party to become a candidate for Congress, and at another 
he was its choice for Governor of the State, but in each instance 
he declined the nomination and sought in his law office the ex- 
ercise and development of those eminent traits of his character 
which recoiled from the cunning schemes and wily shifts of 
politics. Tacitus says of Galba, " He seemed too great for a 
private man, while he was one," and it may be said of Mr. 



374 BENCH AND BAR OF MISSISSIPPI. 

J olinston that as a private man he seemed too good for a public 
one. Yet he was always ready to serve his people on any occa- 
sion of great moment, and his consistency and fidelity never 
swerved or varied throughout the ever-changing panorama of 
events which spread themselves upon the two last decades of his 
life. His well-known sentiments in regard to the Union caused 
liim to be defeated for the first and only time, in his candidacy for 
the Convention of 1861, which adopted the ordinance of seces- 
gion ; but he was summoned to that of 1865, which enacted its 
repeal. After this Judge Johnston allied himself with the 
Democratic party, exerted his utmost powers, and invoked his 
great ability and extended influence to defeat the vengeful 
policy of the party in possession of the Federal Government, 
and in 1875 was elected to the State Senate from the counties 
of Hinds and Rankin, amid the throes of the reaction which 
redeemed the State from the clutches of radicalism and the rule 
of adventurers. 

But it Avas as a lawyer that the resplendent qualities of his 
mind, and as a priv^ate citizen that those of his heart, shone with 
the greatest lustre. And so full-orbed, luminous, and poised 
were these in their respective orbits that it is difficult to say 
which emitted the purest light or flashed the most calescent 
flame ; or which shed the brightest glow upon his character, 
or gave the most brilliancy to his reputation. His knowledge 
of the law in all its branches was thorough, comprehensive, and 
profound. He was a close, curious, attentive, and apt student ; 
and his knowledge was rooted in the very depths of the science, 
while the quality and bent of his mind were peculiarly adapted 
for comprehending the minutest features as well as the grandest 
outlines of the profession. His rapid and impulsive perception, 
his accurate discernment, and intuitive judgment, readily 
embraced and digested the character of every question of law 
or fact. His patient, painstaking, and complete preparation of 
his cases anticipated every turn and shape which they might 
assume, and he was never surprised or driven to a disadvantage- 
ous position. His studious habits placed him apace with the 
progress of jurisprudence ; and he was familiar with the re- 
ported decisions, which his skill in parity of reason and his 



AMOS R. JOHNSTON. 375 

powers of analogy and comparison enabled him to invoke on all 
occasions, and apply, to the discomfiture of his adversary, in a 
manner as effectual as novel and unexpected. 

His genius was of a high order, and he possessed to an almost 
perfect degree that exact measure and full, round composition 
of qualities required to form the character of a great lawyer. 
Minute in investigation, methodical in arrangement, synthetical 
in his logic, he advanced in his arguments with the snre-fqoted 
pace of a master logician. Nor was his oratory of an ordinary 
kind ; but while devoid of any effort towards ornation or display, 
his manner of speaking was forcible, effective, and engaging, 
and at times, when occasion required, was elevated to eloquence 
and sublimity. 

While stern and unyielding in the conduct of his Ciuses, he 
rarely swerved from the most placid deportment, and main- 
tained on all occasions a pure and polished system of profes- 
sional ethics, which cemented the most pleasant relations between 
himself and both the bench and the other members of the bar. 
His manners were characterized by a simple dignity, an engag- 
ing yet unassuming suavity, a winning courtesy, and a sympathy 
which held in its embrace all the sufferings and sorrows of 
humanity. His liberality was catholic and large-handed, and 
whether it was extended at the bidding of patriotism or the calls 
of private distress, it knew no discrimination but the worthiness 
of its objects, and no bounds but his al)ility. 

His sympathetic nature rendered him peculiarly prone to a 
fondness for defending those unfortunate individuals who had 
fallen under the vindicatory vengeance of the law ; and his 
feelings and faculties once engaged in behalf of the accused, he 
cluno- to the defence with an energy and tenacity which gained 
the admiration of courts and juries, wrenched sympathy from 
the heart of prejudice, and which rarely failed to stay the ai-m 
of the fiercest prosecution. 

One of the most noted instances of this character was in the 
case of the State of Mississippi vs. Boles. The defendant was 
indicted at the October term, 1846, of the Circuit Court of 
Warren County, for the murder of Donnaho, and at the May 
term, 1847, was tried, convicted, and sentenced to be hung ; but 



376 BENCH AND BAK OF MISSISSIPPI. 

on a writ of error, taken by Judge Johnston to the High Court, 
a new trial was obtained. At the May term, 18i8, of the "War- 
ren County Circuit Court the venue was changed to Hinds 
County, and at the May term, 1849, of the Circuit Court of 
that county the prisoner was again found guilty and sentenced 
to death ; but upon a writ of error to the Higli Court a new 
trial was again granted, and mainly for the following reason : 
A juror whose name had been regularly reached upon the list 
of the special venire^ having stated to the court that his wife 
was sick, was excused from serving, notwithstanding the protest 
of both the counsel for the defence and tlie District- Attorney. 

At the May term, 1852, of the Circuit Court of Hinds 
County, Boles was tried the third time, and was again convicted 
and sentenced. During this trial the following circumstance 
occurred : On the list of those who had been summoned on the 
special venire was the name of John W. Jones, and when this 
name was called, James W. Jones came forward and established 
himself as a juror, upon which Judge Johnston stated to the 
court that the name of James W. Jones was not upon the list 
furnished to his client, objected to his being impanelled, de- 
manded the production of John W. Jones, and declined to pro- 
ceed with the call without him. This objection the court over- 
ruled ; and upon a third writ of error the High Court said that 
the prisoner was surely entitled to be tried by a jury selected 
from the persons summoned under the special venire, and 
according to the list furnished him, provided that it contained 
a sufficient number who were competent ; but as the panel was 
completed in this case before the venire was exhausted, the 
objection was not well taken. But in consequence of the admis- 
sion as evidence on this trial of the affidavit of the prisoner for 
the change of venue, and of the former convictions, the High 
Court, in 1854, reversed the judgment and ordered a fourth trial, 
at which the prisoner was acquitted. 

It is said that during the course of this trial, which pended 
through more than eight years, the prisoner, who was incar- 
cerated in an upper story, dropped a peach-seed beneath the win- 
dow of his cell, in the early period of his imprisonment, which 
germinated and grew into a large tree, from whose branches he 




■"S* by Augustus BobiU'"^ 



ZZ-^^'<:-<i-^-<j<^ 



<^<2^s— 



JAMES T. IIAKRISOK 377 

plucked and ate fruit before liis enlargement ; and that having 
entered into confinement a hale, hearty, and robust man, he 
emerged from his long durance old, gray-headed, and dewepit. 
But it is not upon a few leading cases alone that the evidence 
of the eminent qualities of Judge Johnston rest, lie was enter- 
prising aiul determined in all his undertakings, open and 
avowed in creed and action, and detested even the appearance 
of equivocation. His mental character was fashioned in the 
mould of law, his moral in the cast of rectitude. No disorders 
of society or state of public moral declension could shake his 
firmness or lower the standard of his virtue, and througliout the 
vicissitudes which upheaved the social order of the country he 
was the same patriot, the same upright citizen, the same -pure 
man, and maintained to his end an integrity of conduct and a 
calmness of spirit which reproduced and recalled the examples 
of the (Datriotsof ancient days ; and at his death, wliich occurred 
in 1879, it was a universal sentiment that a great and good man 
had fallen in Mississippi. 



JAMES T. HARRISON. 

Among the many great lawyers who have adorned the bar of 
Mississippi there were few, perhaps, whose characters presented 
such a full, round orb of eminent qualities, and whose mental 
traits it would, in a metaphysical view, be more difficult to 
abstract and define, than those which characterized the subject 
of this memoir ; the attempted portraiture of which must 
result disastrously alike to the skill of the artist and the power 
of his colors. 

James Thomas Harrison was born near the village (-f Pendle- 
ton, in the State of South Carolina, on the 30th of November, 
1811. His father, Thomas Harrison, was a distinguished law- 
yer and a descendant of a signer of the Declaration of Indepen- 
dence. He M-as also captain of a battery in the war of 1812, 
and was afterwards Controller- General of the State. 

The mother of James T. Harrison was a lady remarkable for 



378 BENCH AND BAR OF MISSISSIPPI. 

her many graces and accomplishments. She was the daughter 
of General John Bayliss Earle, who was a leading member of the 
famons ^Nullifying Convention, and one of the most highly- 
respected and popular men in his State. 

The residence of Thomas Harrison, Lowther Hall, was situ- 
ated on the little river Tugaloo, and opposite to Fort Hill, the 
home of John C. Calhoun ; and it was in the glare of such sur- 
roundings that the subject of this sketch imbibed those beams of 
greatness which kindled the fires of his genius and afterwards 
blazed along his own pathway. The inspirations of such a 
nursery, and the impressions which he received from the master 
mind of his distinguished neighbor, blended with his natural 
endowments in the formations of a mind which afterwards ex- 
panded into an illustrative type of true greatness. He was a 
close and devoted student, manifested at an early age an eager 
and inquiring mind, and his career was one of those rare instances 
in which youthful precocity realizes the hopes of parental ambi- 
tion and the promises of early years. On reaching the age of 
eighteen he graduated with distinction at the University of 
South Carolina, and then studied law under the celebrated 
James L. Pettigru, of Charleston, where he was admitted to 
the bar. The teachings and examples of his distinguished pre- 
ceptor no doubt left plastic impressions upon the already highly- 
wrought mould of his mind, and stamped his career with the fore- 
bodings of future success. 

Having now arrived at the age of majority, he contracted the 
raging desire among young lawyers of that period to emigrate 
westward, and lured by the professional attractions of Missis- 
sippi, which were then being spread upon the gaudiest wings of 
report, he determined to make his future home amid her bloom- 
ing prairies and tangled wilds — a step which, he said, he soon 
regretted, and that some remark of his father predicting, when 
he gave his consent to the move, that he would soon tire of the 
hardships of his new home and return to the old, was mainly the 
cause of his remaining. 

Arriving in Mississippi in 1834, he established himself at 
Macon, the county seat of Noxubee County, and there began 
his first struggles for professional fame. Possessed of ample 



JAMES T. HARKISON. 379 

means supplied by his father, wliowas in affluent circumstances, 
he was enabled to direct his application with a view to improve- 
ment rather than to the speedy acquisition of gain ; but it waa 
not long before his talents were recognized, and he soon found 
himself in the midst of a remunerative practice. 

At Macon Mr. Harrison formed a copartnership with the late 
Judge Ruflf, but he remained at that place only two years, after 
which, induced by the prospects of a more extended Held, lu; 
removed to Columbus, where he made his permanent abode and 
achieved his great success. Here he was married, in 1840, to 
Miss Regina Blewett^ the eldest daughter of Major Thomas 
Blewett, who was one of the wealthiest planters in Mississippi, by 
whose assistance, together with his own ample patrimony and 
acquired means, he was now in a condition to pursue his profes- 
sion simply for the love which he bore it, and this love, setting 
apart his affection for his family, was the ruling passion of his 
life. He loved the law as the grandest edifice ever erected by 
the mind of mortal man, as the great receptacle into which has 
flowed the wisdom of the ages. He recognized the truth of the 
saying of Sir Henry Finch, that " the sparks of all the sciences 
in the world are raked up in the ashes of the law," and he 
adopted the maxim of Lord Kenyon, that ^^ melius est petere 
fontes qumn sectari rivos.''^ 

He had early consecrated all his energies, his talents, and his 
ambition to his profession, and he clung to it through life with 
the fondness and fidelity of a devotee, and with an indefatigable 
determination to dive to its depths and ride upon its surface, to 
be among its heroes, " aut Ccesar, aut nuUusM-- ' ' I ^ f^- 

But while he conceived, as Mr. Locke said of manhlnd and 
man, that the proper study of a lawyer was law, yet there was 
one book which he considered as an indispensable adjunct, and 
from which he often drew the most cogent streams of convic- 
tion. When the venerable Macklin entered his son as a student 
of law at the Temple, he enjoined upon him the Bible as the 
first book he must study. "The Bible, Mr. Macklin, for a 
lawyer?" asked the learned gownsman. " Yes, sir," replied 
Macklin, " the properest and most scientific book for an honest 
lawyer, as there you will find the foundation of ail law and 
morality." 



380 BENCH AND BAE OF MISSISSIPPI. 

Mr. Harrison always kejDt a Bible and concordance witliin reach 
of bis office cbair, and its precepts, no donbt, smoothed the 
rou^h edges of his legal character, and gave ascendency to that 
warmth of charity and habitual amiability which so highly 
adorned his life. 

The genius of Mr. Harrison was adaptable to universal appli- 
cation. It is said that Sir Isaac Newton attributed the great 
excellence of his mental qualities not to any superior endow- 
ment, but to an acquired capacity for close attention and patient 
thinking. Bat Mr. Harrison inherited talents of the highest 
order. He possessed all the qualities and acquirements which 
constitute a brilliant and well-regulated mind, and had it been 
guided in that direction, would, no doubt, have roamed as 
luminously amid the constellations and azure fields of the 
heavens as it did through the lurid cope of equity and the laby- 
rinthian concaves of the common law. 

He had cultivated a habit of minute observation, of steady 
and continuous attention, and contemplated the law in all its 
elements and relations. No fact or circumstance, on the trial 
of a cause, escaped the glare of his perception, no testimony the 
exact measure of his estimation, no evidence the poised scales of 
his precision, no law the facility of his application, no. artifice 
of an opponent the depths of his penetration, and no sub- 
tlety the winnowing process of his analysis. 

His reasoning was logical and profound, and the succession of 
his ideas was regulated and controlled by a cultivated and accu- 
rate synthesis. In argument he was close, alert, and compre- 
hensive ; nor did he permit the train of his thoughts to be 
broken by frivolous and transient diversions ; but with his own 
•view fixed solely and directly upon the goal of conviction, he 
blinded the minds of his hearers with no collateral display. 

His ready powers of association and comparison afforded him 
great facility for analogy and parity of reason. He viewed 
facts according to their just and true relations, and connected 
them in his mind by a chain of kindred features and dependen- 
cies. Hence his memory was active and faithful, and always at 
his command for the purveyance of his boundless resources. 

He possessed a highly -wrought and vivid imagination, which 



JAMES T. HARRISON. 381 

at times leaped from the copious liive of sentiment, jTatliered 
sweets from every flower of imagery, and feasted upon tlie very 
ambrosia of -Esthetics. Yet lie rarely indulged inliyperbolism, 
but restricted his metaphors to objects and features which har- 
monized with truth. His fancy attached itself more to the elu- 
cidation of obscure intricacies and to the w^eaving of technical 
subtleties than to the shallowness of overwrought imagerv. 

As a special ])leader Mr. Harrison had no superior, if an equal, 
in the annals of the Mississippi bar, and had he lived in the days 
of Mr. Stephens and Mr. Chitty, he would, doubtlessly, have 
taken rank with the most skilful pleaders in the courts of West- 
minster Hall. Illustrating this feature of his professional char- 
acter, the facetious author of " Flush Times of Alabama and 
Mississippi," referring to him as " Jim T.," gives an amusing 
description of his early standing among his legal associates. 
Speaking of the older members of the bar of that period, Mr. 
Baldwin says : 

" The aforesaid leaders carried it with a high hand over us 
lawyerlings. What they couldn't get by asking the court, tliey 
got by sneering and browbeating. They could sneer like Mal- 
groucher, scold like Madam Caudle, and hector like Bully 
Ajax. . We had a goodly youth from the Republic of South 
Carolina, Jim T. by name. The elders had tried his mettle. 
He wouldn't fag for them, but stood up to them like a man. 
Jim was equal to any of them in law, knowledge, and talent, 
and superior in application and self-confidence, if that last could 
be justly said of mere humanity. He rode over us rough-shod, 
but we forgave him for it, in consideration of his worrying the 
elders and standing up to the rack. He was the best lawyer 
of his age I had ever seen. He had accomplished himself in 
the elegant science of special pleading, had learned all the arts 
of confusing a case by all manner of pleas and motions, and 
took as much interest in enveloping a plain suit in all the cob- 
webs of technical defence as Vidocq ever took in laying snares 
for a rogue. He would ' entangle justice in such a web of law ' 
that the blind hussey could have never found her way out again, 
if Theseus had been there to give her the clew. His thought 
by day and his meditation by night was special pleas. He loved 



382 BENCH AND BAE OF MISSISSIPPI. 

a demurrer as Dominie Do])iensis loved a pun — with a solemn 
affection. He could draw a volume of pleas a night, each one so 
nearly presenting a regular defence that there was scarcely any 
telling whether it hit or not. If we replied, ten to one he 
demurred to the replication, and would assign fifteen special 
causes of demurrer in as many minutes. If we took issue we 
run an imminent risk of either being caught upon the facts, or of 
ha^'^ng the judgment set aside as rendered on immaterial issue. 

"Jim T. was great on variances too. If the note was not 
described properly in the declaration, we were sure to catch it 
before the jury ; and if any point could be made on the proof, 
he was sure to make it. IIow we trembled when he began to 
read the note to the jury ! and how ominous seemed the words 
' I object ' of a most cruel and untimely end about being put to 
our case. 

"How many cases where, on a full presentment of the legal 
merits of them, there was no pretence of defence, he gained, it 
is impossible to tell. But if the ghosts of the murdered victims 
could now arise, Macbeth would have an easy time of it com- 
pared with Jim T. How we admired, envied, feared, and hated 
him ! With what a bold, self-relying air he took his points I 
With what sarcastic emphasis he replied to our defences 
and half defences ! We thought that he knew all the law there 
was, and when in a short time he caught the old leaders up, we 
thought, if we couldn't be George Washington, how we should 
like to be Jim T. ! 

" He has risen since that time to merited distinction as a ripe 
and finished lawyer ; yet ' in the noon of his fame ' he never 
so tasted the luxury of power, never so knew the bliss of 
envied and unapproached j)re-eminence, as when, in the old log 
court-houses, he was throwing the boys right and left as fast as 
they came to him, by pleas dilatory, sham, and meritorious ; de- 
murrers, motions, and variances. So infallible was his skill in 
the£e infernal arts that it was almost a tempting of Providence 
not to employ him." 

To these indications may be superadded an incident which oc- 
curred in his old age, and within the observation of the author : 

Mr. Harrison was engaged in the defence of a cause before the 



JAMES T. HAREISON. 383 

Circuit Court of Colfax, now Clay County, in wliicli there was a 
heavy claim for damages for " enticing away" laborers who were 
under contract, and on tlie introduction of the case he claimed 
its dismissal for lack of merit and cause of action, contendino- 
that, by virtue of the thirteenth and fourteenth amendments^ 
the common-law relation of master and servant did not exist in 
this country. There were apparently no American precedents 
at hand, and seemingly a fatal ,halt was caused in the proceed- 
ings, during which the counsel for the plaintiff drew forth ad- 
vance sheets of the Crispins' case, which is contained, I believe, 
in the 109th Massachusetts Reports, then in press, and which 
he had obtained a few days before from the reporter of that 
State. 

The com-t, without objection on the part of Mr. Harrison, 
permitted the loose sheets to be read, and it transpired that in 
that case the Supreme Court of Massachusetts, in answer to the 
very argument advanced by Mr. Harrison, held that the right 
of action in such cases depended not upon any positive law, but 
was a right rising out of the contract, and was applicable to all 
classes and conditions of men. 

From this time the rulings were all against him, and he Avas 
brought down to the jury with every circumstance apparently 
stamped with premonitions of defeat. But the plaintiff had 
no sooner begun the introduction of his testimony than Mr. 
Harrison seized npon a technical variance between the declara- 
tion and the proof, wliich he managed so adroitly as to cut off 
the plaintiff from the main body of his evidence, and reduced 
all possible damages to a mere nominal amount. Upon Mhich 
the counsel for the plaintiff, on realizing the situation, ob- 
served that Mr. Harrison, after having been dislodged from his 
perch in the topmost branches, and shaken from bough to 
bough, and from twig to twig, when brought to the roots had 
sprung upon a stump and barked " variance," at wliicli Mr. 
Harrison, now resting in the placidity of a narrow triumph, 
joined in a hearty laugh ; but had he been laboring under the 
irritation of defeat, he would, most likely, have hurled back 
one of those sarcastic and scathing retorts of which, when occa- 
sion required, he possessed such perfect mastery. 



384 BENCH AND BAK OF MISSISSIPPI. 

Over all these attributes was the exercise of a sound and 
correct judgment, which, nurtured in the lap of learning 
and fed from the copious stores garnered by tributary qualities, 
expanded to the vast outlines of his comprehension, seized upon 
every feature of entity, laid hold upon- every object in nature, 
and was equally efficient in the formation of opinion and in the 
guidance of action. He possessed a sanguine temperament and 
strong emotional energy, which in his latter days gave him at 
times the appearance of beijjg captious, but his well-balanced 
judgment and kindness of heart dispelled that austerity which 
is generally a concomitant of bodily infirmity and mental se- 
nescence, and he was one of the comparatively few of mortals 
whose capacity for intellectual enjoyment did not slacken at the 
touch of age. His " vigenti annoruTn lucubrationes^^ extended 
to the end of his life. 

But while the aspirations of his genius and the cravings of his 
ambition seemed to find no limits within the scope of his profes- 
sion, he entertained no desire for official preferment, and had no 
taste for public life. Twice he was offered a seat upon the 
supreme bench of the State, and as often declined it. 

He was chosen, without his knowledge, by the Mississippi Con- 
vention of 1861, a delegate to the Convention of the Southern 
States at Montgomery, and there advocated the adoption of the 
old fiag in a speech said to have been of remarkable force and 
eloquence. He was also in the Confederate Congress during 
the entire period of its existence, and was considered one of the 
most able and efficient members of that distinguished body. 
But his ardent temperament and gallant disposition would have 
hurried him into the thickest of the fiery drama had it not been 
for a near-sightedness which rendered him totally unfit for mili- 
tary service. 

On the reorganization of Mississippi under the Johnson ad- 
ministration, he was elected by a large popular majority to a seat 
in the Federal House of Representatives, and repaired, with his 
credentials, to Washington ; but the entire Mississippi delega- 
tion having been refused admittance, he returned to his practice, 
and confined his interest in public affairs to the redemption of his 
State and people from the Moloch grasp of Federal oppression. 



JAMES T. HAREISON. 385 

But about this time lie received a compliment which he 

highly appreciated, and which he considered really as one of the 

proudest events of his life. The following communication will 

set forth its nature : 

" Jackson, July 13, 1865, 
"Hon. James T. Hakrison. i 

" Dear Sir : The undersigned, believing that it is proper that 
the bar of Mississippi should be represented on the occasion of 
the trial of President Davis, have selected yon as such represen- 
tative. 

''Apart from the transcendent importance of the case, as affect- 
ing the most vital principles of constitutional freedom, it is due 
to the eminent character of President Davis that counsel from his 
own State should offer their services. More especially so since 
one of the most eminent lawyers of America, a resident of a 
Northern State, has already asked the privilege to aid in the 
defence. AVe earnestly appeal to you to gratify the wishes of 
your professional brethren. 

" Will you please respond at your earliest convenience, as it is 
uncertain what time may be appointed for the trial '{ 

" We may add that all expenses incurred by you will be de- 
frayed. AVe could not ask a higher sacrifice of you than the 
loss of time you would be compelled to submit to by acceding 
to our request. 

" We could convey no higher expression of our confidence in 
your professional ability than is implied in your selection for 
this most delicate and important trust. 

" The civilized world regards the trial with more interest than 
any one which has occurred within the annals of our race. 
AVith what feelings should Mississippi contemplate the scene in 
which her most illustrious citizen is arraigned for his life for 
having been placed in the position he lately occupied as the rep- 
resentative of her most sacred rights ? 

" We have the honor to be, 

" Very truly, your obedient servants, 

" C. E. lioOKER, A. R. JOUNSTON, 

" F. Anderson, A. P. Hill, 

" T. J. Wharton, E. S. Fisher, 

' ' and Others. ' 

Mr. Harrison promptly accepted the trust, and said that if 
the trial should occur he would appear in defence, but that lie 
did not believe it would ever take place ; that, with Chief Jus- 
tice Chase presiding, there would be no chance of conviction, 
and he did not believe the United States Government would 
risk the stakes. 



386 BENCH AND BAE OF MISSISSIPPI. 

These predictions, engendered by his far-seeing judgment and 
legal acumen, were fully verified, and the Government seemed 
to labor as hard to justify an escape from the issue as it had 
bustled to impress the resoluteness of its purpose ; while Mr. 
Harrison was relieved from a defence in comj)arison with 
which, in view of the magnitude of its bearings, those of AYar- 
ren Hastings and Queen Caroline would have dwindled into 
utter insignificance, as, indeed, would all others, scarcely except- 
ing the frantic farces of the revolutionary tribunals which 
brought the heads of Charles I. and Louis XVI. to the block. 

But, rivalling the jewels of his intellectual crown, there were 
the shining qualities which decked the almost unsullied robes of 
his purity. While his life was one continual j^ath of duty, it 
was the clear, cool, breezy walk of rectitude, arched over with 
the canopy of genius, and garlanded with the flowers of charity 
and benevolence. His professional ethics were pure, elevating, 
and exemplary, and while he was vehement and pertinacious 
in advancing and maintaining his positions, he was gentle and 
yielding to the rulings of the court, dignified and urbane towards 
his opponents at the bar, tender and conciliatory in the examina- 
tion of honest witnesses, but peculiarly severe towards the pre- 
varicating, evading, and contumacious. This last well-known 
characteristic enabled him, no doubt, to extract from fear many 
a truth in the promotion of justice which would otherwise have 
remained locked in the bosom of dishonesty. While he de- 
lighted to entrap them in technicalities, he was generous to the 
younger members of the bar, and always ready to give them aid 
and counsel. But he had no mercy on negligence and inexcus- 
able ignorance. He thought that they should thoroughly qual- 
ify themselves before entering the bar, and was severe on those 
who entered through his examination. The author experienced 
his inquisitiveness in that respect. 

There were but few, if any, who dispensed more professional 
charity than Mr. Harrison. If he charged a poor man, it was 
but a nominal fee, and he always advised such to avoid litiga- 
tion if possible. He had early in his professional life adopted 
two rules, to which he continued to adhere — not to charge a 
widow, nor to prosecute a man for his life. He said that during 



JAMES T. HARRISON. 387 

his early practice he once prosecuted a capital charge upon purely 
circumstantial evidence, and after conviction labored a.s iiard 
to rescue the unfortunate man as he had done to convict hini 
on the trial ; which he succeeded in doing, but that the near ap- 
proach of the execution gave him such a shock that he never 
afterwards had any faith in circumstantial evidence, and resolved 
never again to engage in a prosecution involving life. 

Among the many exhibitions of his genius he cherished a re- 
markable fondness for the science of geology, or rather for its 
objects, for his devotion to the study of law would not permit 
such an exacting rival ; but he was fond of geologizing, and his 
cabinet of collections, which he arrayed in his law office, and to 
which he took pride in directing the attention of his visitors, 
was truly novel and interesting, and perhaps the most complete 
group of specimens possessed by any individual in the State. 

It was on one of these excursions, not long after the war, 
among the rocks of Noxubee County, that he received a wound 
from the fall of a large stone, which necessitated the amputation 
of a large portion of his right foot, a circumstance M'hieh caused 
him great suffering during the remainder of his life. 

He died at his residence in Columbus on the 22d of May, 
1879. And here prudence would dictate that the curtain should 
fall upon this feeble narrative ; but I must subjoin that, in addi- 
tion to all these more public qualities of head and heart, Mr. 
Harrison maintained the most affectionate domestic relations. 
He was a fond husband, a doting father, and a devoted friend ; 
and while the friendship he inspired needed but the mesmeric 
contact with his virtues to assume the growth of love, the golden 
chain was linked with the jewels of domestic felicity. To say 
that he was dear to his family and his friends would be to arro- 
gate an unnecessary and gratuitous act of judgment, and to say 
how dear is not perhaps in the power of speech or thought. 

For such a character to have been free from every fault antl 
failing of humanity would not have been human. Yet so few 
were his weaknesses that they weighed but little in tlie scale of 
his greatness. His glory gathered in his dawn, blazed Mith 
splendor in the meridian of his life, and gilded the liori/.on of 
his declining years. And while he has di'sappeared behind the 
25 



388 BEl^CH AND BAE OF MISSISSIPPI. 

sunset and the night, his fame will return with the morning, 
and ascend the current of the stream of time, until it is gathered, 
with all the bright things of earth, into the realms of eternal 
light, and receive its plaudits from the everlasting shores. 

Numerous and eloquent eulogistic speeches were made on 
the death of Mr. Harrison by his brother members of the bar, 
while the press of the State teemed with tributes to his memory. 
The following resolutions were adopted by the bar of Columbus : 

" The members of the Lowndes County bar, desirous of giv- 
ing public expression to their feelings, and of the sense they 
•entertain of the loss which the bar has sustained by the death of 
its oldest and most distinguished member, who for more than 
lialf a century has illustrated the virtues of the profession, 
adorned it by the exhibition of rare and eminent talents, and 
left to his survivors an examj)le of spotless purity and integrity 
•of life ; and also to manifest the affectionate esteem iti which 
they hold the memory of their venerated departed brother, as a 
•citizen eminent for all the attributes that adorn citizenship, and 
as a man endeared to their affections, as well by his private as 
public life ; by social qualities of heart, as well as by the vigor 
•of his intellect, do adopt the following resolutions : 

"1. Resolved^ That the members of the bar heard with deep 
and painful regret of the death of the Hon. James T. Harrison, 
and that we sincerely condole with the members of his family 
ovei' the calamity which has befallen them, and the great loss 
sustained by the community. 

" 2. Resolved, That, as a testimony of respect for the memory 
of the deceased, the judge's bench be draped in mourning dn- 
ring the remainder of the term. 

" 3. Resolved, That, as a further token of respect, your Honor 
be requested to have the proceedings of the bar spread upon 
the minutes of the court, and that they be published in the city 
papers, and that the secretary furnish a copy to the family of 
the deceased." 

iN^ill close this sketch with Ihe following extracts irom some 
of th^oquent addre^es delivered on the occasion of Mr. Har- 
rison's ola^tli by the ge\itlemen of the bar, and which I have 
selected ohW by virtue of a difficult discrimi^nation in favor of 
literary excellence and metaphysical merit. , \ 



/ 



"S" by _-iugi,3tU£ RobUi " 




JOrm B. SALE. 391 



JOHN B. SALE. 

If an uncommon strength of judgment and a justness of 
tliouglit, which measure events by the rules of prudence, weigli 
every fact and phenomenon in tlie scale of an attentive ohserva- 
tion, and rescue truth from the shackles of sophistry, may be 
accepted as an interpretation of genius, I have no hesitancy in 
ascribing that quality to the subject of this sketch, while I must 
allot to him the jjossession of an overruling virtuous sentiment 
which, like that of Hercules, decided the course and guided 
every motive of his life. 

Xenophon, in his elegant Memorabilia of Socrates, relates a 
beautiful allegory describing the choice of Hercules between the 
superficial allurements of sensuality and the pure charms of vir- 
tue. The youthful hero, having arrived at the age of discre- 
tion, seeks the stillness of solitude for the purpose of retlecting 
and deciding upon his course of life ; and whilst in a state of 
perplexity as to whether he should enter upon life by the way 
of virtue or that of vice, he is approached and accosted by two 
women of remarkable appearance and stature. The countenance 
of one of these ladies glowed with benevolence and the modest 
smile of amiability. Her manners were dignified and gentle ; 
every gesture betokened the highest culture of decency and gen- 
tility. She wore no ornaments. Her native charms needed no 
artificiality to add to their serene splendor. She was adorned 
with neatness and elegance, and all her garments were of the 
purest white. 

The other was not without beauty ; but, notwithstanding her 
rouged cheeks and carmined lips, her countenance had the ap- 
pearance of being sallowed and bloated from luxurious excesses, 
and while she affected the most engaging mannei-s, her demeanor 
was evidently studied and constrained, and every artifice was 
resorted to to remedy her natural defects. Her fingers and ears 
and breast glittered with sparkling ornaments. She wju, ex- 



392 BEIs^CH AND BAR OF MISSISSIPPI. 

ceedingly bold, and the blusli of modesty was altogether a 
stranger to her cheeks. Her dress was of the most gorgeous 
colors, and she was ever on the alert to detect the glance of 
admiration ; indeed, she would often stop to admire her own 
shadow. With characteristic pertness, she hastened in advance 
of the quiet, majestic steyj of her companion, and addressing 
Hercules with a bland but affected smile, announced to him that 
she was aware of the character of his meditations, and if he 
would accept the offerings of her friendship, she would conduct 
him along the most flowery paths of happiness and ease, where 
every delight should court his enjoyment, and not a thorn of 
pain or thistle of sorrow should ever pierce his feet. Free from 
the harsh and annoying concerns of life, the pleasures of luxury 
should be his only employment. 

Upon this flattering and seductive announcement, Hercules 
demanded her name. " My friends," said she, " call me Hap- 
piness, but my enemies brand me with the nickname of Sen- 
suality." 

But the other lady had by this time arrived, and accosting 
Hercules, said that she too had come to offer the consolation of 
her friendship in the matter about which he seemed to be dis- 
turbed . That she was not a stranger to his eminent parentage, and 
had remarked the goodness and amiability of his disposition from 
his early childhood, and froin which she entertained the most 
lively hopes that if he would follow her lead he would achieve 
glory for himself and be an honor to his chaperon. But that 
she did not intend to allure him with sj)ecious promises of pleas- 
ure, but would represent things as they existed in reality, and 
disclose to him the will of Heaven concerning therm. " Know, 
then, young man," said she, "that the all- wise rulers of the 
universe have decreed that nothing great, nothing excellent 
can be obtained without care and labor ; that no good, no hap- 
piness, can be attained on any other terms. If, therefore, you 
would secure the favor of the gods, adore them. If you desire 
the love of your friends, be worthy of it. If you wish to be 
honored by your fellow-citizens, serve them. If you wish the 
fruits of the earth, cultivate it. Thus alone, O Hercules, 
mayest thou attain that felicity with wiiich I am empowered to 



JOHN B. SALE. 393 

reward those who yield to my direction, and who not only enjoy 
the richest blessings of earth, but when the fatal hour arrives, 
my votaries sink not like others into inglorious o])livi()n, but 
live forever in the favor of the gods and the grateful renienj- 
brance of mankind." 

Let lis now trace the application of this beautiful allegory to 
the subject of our sketch. John Burruss Sale was born in 
Amherst County, Virginia, on the 7th of June, 1818. He was 
the son of an eminent divine, Rev. Alexander Sale, and of Sarah 
Burruss Sale. 

While he was a boy his father moved to Lawrence County, in 
the State of Alabama, and there placed him in the college at 
Lagrange, where he was educated under tlie supervision of the 
now venerable Bishop Paine, who was then the president of 
that institution, and whose voice may liave been to young Sale 
what that of the lady in white was to Hercules. And as the 
life of Hercules evinced the wisdom of a choice which enabled 
him under the sternest decrees of fate to glorify the teachings 
of virtue, so that of the subject of this sketch verified the power 
of those hallowed admonitions which he received from his pious 
father and sanctified preceptor. 

On the completion of his collegiate course Mr. Sale read law 
under Judge Ormand, of Alabama, and was admitted to the bar 
of that State in 1837, at Moulton, when he was but nineteen 
years of age, and two years later was chosen judge of the Pro- 
bate Court. His morality and close application, together with 
the eminent qualities of his mind, enabled him very soon to 
achieve the distinction of a young lawyer of much promise, and 
finally conducted him to the position of eminence. 

In 1845 he removed to Aberdeen, Mississippi, where, two 
years afterwards, he formed a copartnership with John Goodwin, 
Esq. This firm continued until ISoi, Avhen Colonel James 
Phelan, afterwards Senator from Mississippi in the Congress of 
the Confederate States, was admitted as a member, and on the 
death of Mr. Goodwin, in 1857, Messrs. Sale k Phelan con- 
tinued their copartnership until the outbreak of the civil war. 

In 1861 Judge Sale organized a company of volunteers, 
which was assigned to the 27th Mississippi Regiment. On the 



394 BENCH AND BAE OF MISSISSIPPI. 

reorganization of this regiment lie was elected major, and was 
soon made lientenant-colonel, and assigned to duty as judge- 
advocate of the Army of Tennessee. 

He remained in this position about six months, was then pro- 
moted to colonel, and ordered to report to General Bragg, at 
Richmond, as chief of staff, and remained in this position until 
the close of the war. In this capacity the services of Colonel Sale 
were so meritorious and efficient as to elicit expressions of grate- 
ful recognition from his commander, and on hearing of his death 
General Bragg wrote : " Colonel Sale was to me not only a true 
friend, hut a wise counsellor and an unwavering support, upon 
which I relied with confidence in times of great trial." 

On his return home in" 1865 Colonel Sale renewed his copart- 
nership with Colonel Phelan, and the firm was soon after joined 
by Colonel William F. Dowd, and became one of the most 
noted in the State. On the removal of Colonel Phelan to Mem- 
phis, about a year later, the firm of Sale & Dowd continued 
until 1875, when it was dissolved by mutual consent, and Colo- 
nel Sale then admitted Mr. E. H. Bristow to a share in his 
practice. This copartnership continued until the death of 
Colonel Sale, which occurred on January 24th, 1876, from a 
spinal affection induced by too prolonged and intense mental 
application. 

He was first married to Miss Susan Turner Sykes, daughter 
of Dr. William A. and Rebecca Sykes, formerly of Decatur, 
Alabama, and afterwards of Aberdeen, Mississippi. She died 
in 1848. His next marnage was with Miss Nannie T. Mills, of 
Aberdeen, who died in 1857. In 1860 he married Miss Lou 
Leigh, daughter of the Rev. Hezekiah G. Leigh, formerly of 
Mecklenburg County, Virginia, and the founder of Randolph 
Macon College, She died in 1863, during the absence of her 
husband in the army, and in 1866 he married Miss Annie Cor- 
nelius, of New Orleans, daughter of William Cornelius, Esq., a 
prominent lawyer of that city. This estimable lady survives 
him. 

As a lawyer, Colonel Sale possessed many eminent qualities. 
While he may not have been distinguished for that coruscating 
brilliancy of imagination which Shakespeare characterizes as a 



JOHN B. SALE. 395 

" fine frenzy," he possessed an accurate perception, a sound 
and penetrating judgment, and an indefatigable po'.ver of aj)- 
plication. Hence liis knowledge of the law was deep and thor- 
ough, and his arguments lucid and logical. So careful w;is 
he of profound research, and so patient of investigation, tliat he 
never appeared in court without having made a thorough prep- 
aration, wdiatever may have been the nature of his case. 

He was unswerving in his integrity and stern devotion to 
principle, was conscientiously faithful to the interest of his 
clients, but spurned a cause which he believed to be unjust. 
His abhorrence of anything like fraud was exemplary and pro- 
nounced, and he never lost an occasion to lash the iniquity of 
knavery. Chivalrous and magnanimous in his disposition, he 
had no sympathy for the illiberal and the mercenary, and 
Ijrought all the powers of his mind and all the energies of his 
nature to bear in the elimination of truth and the vindication of 
justice. These well-known features of his character engaged 
universal confidence in him as a lawyer, ^nd the highest respect 
for him as a man. 

Blended with his legal acquirements and the sterner traits of 
his character, Colonel Sale possessed a nature tenderly sensitive 
to the beautiful and the sentimental. He was fond of poetry and 
music, and in spare hours often quenched his aesthetic thirst in 
the Pierian springs and the fountains of Parnassus. His col- 
lection of paintings evinced a cultivated taste for the fine arts, 
and his fondness for literature was exemplified in the scope and 
excellence of his library. 

He was also bland and courtly in his bearing, dignified and 
polished in his demeanor, and altogether engaging in his man- 
ners. The presentation and conduct of his cases were cjdm, 
methodical, and clear, and when he was not aroused by his scorn 
of undue advantage, were suave, courteous, and conciliatory. 
That he was a successful law;yer was but the natural result of 
these qualities, and he enjoyed a lucrative and enlarging prae. 
tice to the day of his death. 

While his patriotic heriosm and professional eminence slied a 
halo around his character, there were few men who have gone 
down to their graves clad in the robes of a more spotless purity ; 



896 BENCH AND BAK OF MISSISSIPPI. 

and, as Sir James Mackintosh said of Mr. Grattan, '' The purity 
of his Hf e was the brightness of his glory. ' ' His patriotism cher- 
ished the honor of his country, his ambition sought the mastery 
of his profession, his love revelled in the hallowed precincts of 
his home circle, while his hopes, buoyed by his unswerving 
faith, feasted upon the promises of divine revelation. 

The religious character of Colonel Sale was in the highest 
degree bright and exemplary. He had long been a strict mem- 
ber of the Methodist Church, and died, as he had lived, in the 
enjoyment of all the hallowed influences of Christianity. The 
lady i?i white attended upon the death of her votary. 



WILLIAM F. DOWD. 

I cannot by any means subscribe to that materiaUstie doc- 
trine which would consign genius and intellectual cultui'e to the 
narrow sphere of an earthly existence, and which would send 
us from this world disrobed of all intellectual graces, with no 
conception but that of accountability, and with no endowment 
but an embryo capacity for an existence certified only by the 
dim scroll of religious faith or the blank sheet of infidelity. 

There is with every one, notwithstanding the dogmas of 
casuists, an inward revelation that the acquirements and treas- 
ures of the mind are immortal, and, as the Greeks expressed it, 
TO aioviov HlF/jxa, " j)ossession forever," and when we are 
told that " angels desire to look into these things" we are re- 
minded that the cravings of the intellect are manifested even 
around the very throne- of heaven, and there continues to 
weave the golden threads of thought, and gather its ambi'osial 
food — to rise higher and higher- until it is merged in the zenith 
of illimitable light. It must be believed, too, that the gifts of 
genius are in part the talents of the parable, and that its proper 
development is the usury demanded. 

This everlasting quahty was possessed in an eminent degree 



WILLIAM F. DOWD. 397 

by the subject of this sketch— a genius wliicli has left beliind it 
a superb mark, a proud. niche in the cohunn of legal fame. 

William Francis Dowd was born in the State of South Caro- 
lina, at Society Hill, in the District of Darlington, on the 31st 
of December, 1820. His paternal ancestors were of Irish ori- 
gin, and were distinguished as soldiers in the war of the Ameri- 
can Revolution. His father was a captain in the war of 1812, 
and was afterwards a Baptist clei'gyman noted for hia strenuous 
advocacy of the missionary interest, and for his exertions towards 
the establishment of educational institutions. His mother, who 
had been educated at the Moravian School of Salem, in North 
Carolina, was a lady of culture and refinement ; and to her 
teachings Colonel Dowd always attributed with distinguished 
pride those ambitious aspirations and eminent qualities which 
achieved his success in life. 

In 1832 young Dow^d emigrated to the State of Tennessee 
with his parents, who settled on a small farm on Forked Deer 
River, near the town of Jackson. Here he was reared to man- 
hood, and here, during the frequent and protracted absences of 
his father on ministerial duties, he attended, during the day- 
time, to the improvement and cultivation of the farm, and at 
night listened to the instructions of his amiable and devoted 
mother, who inspired him with that spirit of application and 
thirst for knowledge which attended him through life. He also 
attended at intervals a common school in the vicinity, and was 
maintained a short time at an academy in Brownsville. 

In 1841 the family removed to Mississippi and established its 
residence in Monroe County, near the village of Sniithville. 
The mind of his aged father had now become greatly impaired, 
and young Dowd found himself burdened with the main 
charge of the family, and M-ith the responsibility of educating 
his younger brother and his sister. He continued to labor with 
his own hands for their support and promotion, but the dull 
and monotonous routine of farm drudgery did not satisfy his 
intellectual appetite and the cravings of his ambition. He 
longed for a sphere in which his conscious genius could assert 
its claims to the notice and respect of his fellow-men. The law 
presented its boundless field and its shafts of glory to his imagi- 



398 BENCH AND BAR OF MISSISSIPPI. 

nation, and, encouraged by his cultured and ambitious motlier, 
lie entered upon its study witli a determination and avidity 
which predestinated at once a successful career. lie continued, 
however, his attention to the fann, and taking his Blackstone 
with him to the field, he would select some shady spot where 
he could observe the progress of the laborers, and there pore 
over those great principles which he was afterwards to elucidate 
with so much depth and brilliancy. And to-day a tree near the 
roadside is pointed out by his old neighbors as having been a 
favorite beneath whose shady boughs he pursued his study, all 
absorbed and heedless of the jeers and jokes hurled at the 
young disciple of Coke by the rustic denizens who passed that 
way. 

He was admitted to the bar about the year 1846, and made 
his first appearance at the April term, 18-lY, of the Monroe 
County Court. He was then a member of the firm of Coop- 
wood, Herbert & Dowd, of Aberdeen. His very first efforts 
commanded the attention and admiration of the court and the 
older members of the bar, and caused him to be recognized at 
once as a young man of decided genius and great promise. 

About this time he became also the editor of a newspaper 
published in Aberdeen in the interest of the "Whig party, which 
he conducted with skill and ability, and without relaxing his ap- 
plication to his chosen profession. In 1851 he was married to 
Miss Ann W. Brown, daughter of Colonel James Brown, of 
Lafayette County, Mississippi, a lady of accomplished culture 
and many distinguisheJ graces ; and so great had become his 
popularity as a successful advocate that his professional income 
during the year of his marriage is said to have reached the 
amonnt of twenty thousand dollars. 

He was an unswerving advocate of the doctrine of States 
rights, favored secession as the only remedy against Federal 
usurpation, and upon the advent of the civil war jjromptly 
marshalled all his energies for the conflict ; and, under a com- 
mission from the Confederate Secretary of War, raised and mus- 
tered for the duration of the war the 21:th Mississippi Regiment 
of Infantry, of which he became colonel. His first engagement 
was at the battle of Corinth, in which his regiment took a dis- 



WILLIAM F. DOWD. 399 

tinguislied part, holding witli desperation a large force of the 
enemy in check while the bloody drama of the day was being 
enacted. At the battle of Perryville he acquitted himself with 
conspicuous gallantry, and at the battles of Lookout ^^lountain 
and Missionary Ridge the 24th Mississippi, led by Colonel 
Dowd, gained a brilliant wreath of the glory of those two terri- 
ble days. After this his health became too feeble for field ser- 
vice, and he was appointed by the President one of the judges 
of the mihtary court for North Alabama, which position lie 
held until the close of the war. 

On the return of peace he again opened the doors of his office, 
and in 1865 entered into a copartnership in law with Colonel 
Sale and Hon. James Phelan, which continued until the year 
1867, when it was dissolved by the voluntary withdrawal of 
Colonel Phelan. The firm of Sale & Dowd was then formed, 
and existed until dissolved by mutual consent in 1876. These 
firms are celebrated in the leo-al annals of the State for the trreat 
learning and ability of the gentlemen composing them. 

After his severance with Judge Sale, Colonel Dowd continued 
the practice alone, and his business was at all times more than 
equal to his physical ability, which, becoming more and more 
impaired, finally gave way beneath the onerous burdens which 
his mental energies imposed upon it. His intense and con- 
tinued application would brook no restraint, his ambition to 
achieve would listen to no bodily rebuke, and he fell on the 
plain of his greatness with the same spirit with w'hich he leaped- 
into the field. He died at his home in A])erdeen, on the 28th of 
November, 1878. 

As a lawyer Colonel Dowd stood in the front rank of the 
profession, and his mind seemed to be singularly adapted to its 
utmost requirements. He took especial delight in (levelo])ing 
and applying its most abstruse and intricate doctrines. It was 
the kind of food whicli the high order of his genius demanded, 
the sphere of well-contested and lofty excellence which suited 
his ambition, and where his superior intellect found a goal 
worthy of its noblest efforts. He loved its labors, its clashes, 
and its excitements. Its difliculties were the choice feasts of his 
soul, and its triumphs the crown jewels of his life. He had 



400 BEKCH AND BAK OF MISSISSIPPI. 

mastered the law in all its branches, was thoroughly familiar 
with its fundamental principles, which, with his keen perception 
and aptness in analogy, gave him rare powers of discrimination, 
of detecting the weak points in the positions of his adversary, 
and of invoking every available prop in support of his own. 

His legal abilities were most strikingly exemplified in the dis- 
cussion of subtle and abstract questions of law, and his genius 
glowed with the most splendor in assailing arguments which 
were apparently unanswerable. But in no department of the 
science or features of its practice did he lack those powers which 
conmiand success and win the meed of fame. 

His logic was accurate, forcible, and repellent of assault. His 
powers of analysis extended to the confines of logical divisibility, 
and his synthesis was characterized by a bold yet closely linked 
and unbroken chain of reasoning ; and when all his forces were 
marshalled into action, a calm, sound judgment sat like Xerxes 
upon the rock of Salamis as generalissimo of the array. 

He was fond of argumentation, prided himself in his logical 
alertness ; and while he was ever ready to signify his recogni- 
tion of just claims and of good qualities, he was quick to detect 
chicanery and discrepancies, and his criticism of these was often 
severe. His repartee was ready and apt, and the edge of his 
satire sometimes painfully keen, yet he never indulged in vitu- 
peration and abuse, and under ordinary circumstances he was a 
paragon of gentlemanly courtesy and of refined professional 
ethics. 

His powers of endurance were great, and he possessed a re- 
markable capacity for intense and continued mental exertion. 
The preparation of his cases was laborious and elaborate, and he 
made it his invariable custom to search for and cull every fea- 
ture available to his case from the reported decisions of both 
England and America. Hence his positions were generally im- 
pregnably fortified, while his vivid memory and ready com- 
mand of his resources rarely permitted him to be surprised or 
placed in a disadvantageous attitude. 

He was equally skilled in law and in equity, while his ability 
and success in criminal defence was of a superior character ; 
and his extensive practice, which extended over the counties of 



WILLIAM r. DOWD. 40i 

Northern Mississippi and to the Supreme and Federal courts of 
the State, was never too varied in its features for tiie versatihty 
of his genius. The cases in the argument of whicli lie perliaps 
made the greatest reputation before the Supreme Court were 
those of Narcissa Scruggs vs. The Memphis and Charleston 
Eailroad Company ; Well et al. vs. The Board of Supervisors 
of Pontotoc County ; and The State Board of Education vs. the 
City of Aberdeen. But it was before the United States Court 
that he won his proudest laurels ; and it fell to his lot to be en- 
gaged before that court in one of the most remarkable and im- 
portant cases ever brought before a judicial tribunal of this 
country. 

Soon after the enactment of the notorious Enforcement Law a 
iarge number of citizens of Monroe County, Mississippi, were, 
without discrimination, save as to politics, arrested upon process 
issued by virtue of an indictment presented by a grand jury of 
the United States for the Northern District of Mississippi, 
charging them with the murder of a negro residing in that 
county, and were carried by the United States marshal before 
the Federal District Court, then in session at Oxford. Colonel 
Dow^d, with Generals. J. Gholson and others, was employed for 
the defence, and immediately filed a petition for a writ of haheas 
corpus, upon the trial of which the relators traversed the re- 
turn of the marshal as to tlie validity and lawfulness of the in- 
dictment and cwpias, and the authority by which the prisoners 
were held. 

This was a case well calculated to kindle all the fires of genius 
and to test all the powers of the mind. It was the first attempt 
made to enforce this despotic law, and involved its constitution- 
ality ; invoked a thorough and penetrating knowledge of the 
features of our complex system of government, the source and 
extent of Federal power, and the nature of its grant, whether 
general or specific, expressed or implied, and the lyghts of the 
State involved. In the investigation of these great and vitnl 
questions they had no guidance of precedent, no illuminations 
of any fixed formulas, but were compelled to coin their argu- 
ments from the crude ores of principle and stamp them with the 
superscription of analogy ; to hew a pathway for the courts, and 



402 BENCH AND BAR OF MISSISSIPPI. 

one tliat would shed some light upon the dark destiny of their 
country. Yet, actuated and inspired by the spirit of patriotic 
devotion, and a dutiful determination to achieve justice for their 
clients, they rose to the height of the subject, and spoke, with 
manly candor, words of warning which fell like the omens of 
fate upon the ear of the Government. 

Colonel Dowdmade the chief and closing argument, in which 
he completely and forever paralyzed the features of this bloody 
bill, and clothed it in the garb of everlasting indignation and scorn 
in the eyes of every just and patriotic man. Had he achieved 
nothing before, his efforts on this occasion would have entitled 
his patriotic eloquence to a place by the side of that of Mr. Pitt 
in his precocious splendor, of that of Pulteney in the meridian of 
his glory, and of that of Lord Halifax when, in the ripeness of 
age, his speeches on the " Exclusion Bill" electrified Britain 
from John O'Groat's to Land's End. 

Impelled by its intrinsic merits, by the importance of the 
case and the magnitude of its issues, I have been constrained to 
introduce the main portion of Colonel Dowd's argument, both as 
an illustration of his legal character and as an elucidation of the 
chief features of the American Government, as distorted by the 
throes of the civil war. 

In closing the argument on the part of the relators. Colonel 
Dowd rose and said : 

" May it ^^lease the Court : To say that this case is one of 
surpassing interest and importance is to give a poor, beggarly 
account of the real magnitude of the great principles involved. 
Under all circumstances the trial of a human being for a capital 
crime awakens the deepest interest in the minds of the court, 
jurors, and counsel, and involves the gravest responsibilities. 
But here we have at stake the lives of twenty-seven of the most 
respectable citizens of Mississippi ; men of individual character 
and personal resj)onsibility ; men with rej^utations untarnished 
with crime, unspotted by suspicion, bearing names known and 
honored when Mississippi was a Territory : one a gray-haired, 
feeble old man, who has nearly lived out his threescore years 
and ten. Others are the sons of the pioneers of our State, and 
have been on the plantations cleared by their sires more than 



WILLIAM F. DOWD. 403 

half a century. These names indude our entire neighborhood ; 
none are left but women and children. 

" But, if your Honor please, this prosecution aims a stab at the 
heart of the Constitution of the United States, and of every 
State in the Union. If successful, it annihilates tlie whole ju- 
dicial system of Mississippi, and of every other State. While it 
concedes the rigld^ it proposes to rob every American citizen of 
the lenejit of a speedy and impartial trial by a jury of Ins peers, 
chosen from the vicinage or county in which he resides, by 
dragging him a hundred miles from his home to a circuit or 
district court of the United States, there to be tried by a jury 
selected from the whole district ; by a marshal who holds his 
office at the will of the Government, and who is compelled to 
organize the jury according to the dictates of the prosecution ! 

"In the long list of judicial murders and butcheries in the 
reign of James II., the rigid of trial by jury was seldom denied, 
but the henejit of that immortal form of trial was denied by the 
selection of twelve partisans of the Crown, organized to convict. 
The list of wrongs einbraced in the words ' against life, lib- 
erty, and property,' as used in all the great charters of English 
liberty, and in all the constitutions of this country, include 
every cause of w^hich the State courts have jurisdiction ; and if 
the Congress of the United States can legislate for the punish- 
ment of every such offence, and confer on the Federal courts 
exclusive jurisdiction, the entire judicial systems of the States 
are blotted from existence. 

" The testhnony shows that an awful crime has been commit- 
ted. Alexander Page, a negro, a citizen of Mississippi and of tlie 
United States, was torn from the arms of his wife, in the mid- 
dle of the night, by a band of disguised ruffians, and murdered 
in cold blood ; even his appeal to his murderers for time to 
make a last prayer to his God, for mercy on his soul, was bar- 
barously refused : unshrouded, unheralded, unknelled, he was 
hurried into eternity ! It was a crime only surpassed in atrocity 
by the Nathan murder in Kew York, by the attempt to roast 
the four brothers alive in their burning dwelling in Indiana, 
and others of a similar character, with which the press of the 
Northern States daily teems. 



404 BENCH AND BAR OF MISSISSIPPI. 

'' But there is a crime surpassing in turpitude all the horrors 
of all other murders blended together, and that is judicial 
murder. 

" The court which usurps jurisdiction and consigns its victim 
to the gallows without authority of law is guilty of this un- 
pardonable sin. It is difficult to believe that even the great 
atonement can obliterate the ofPence from the records of 
eternity. 

" I trust and believe that the wild clamor which rings out over 
the whole Union, calling for the suppression and punishment 
of the Ku-Klux clans, will not be permitted to enter the charmed 
circle of this court-room. All great national and judicial crimes 
have been committed in the name of law, or of order, or of re- 
ligion. 

" The massacre of Saint Bartholomew was committed in the 
name of our holy religion, amid the prayers and tears of the per- 
petrators, and was hailed by a part of the Christian world with 
thanksgiving and praise. The judicial butcheries which blacken 
the pages of English history were all committed in the name of 
the Lord, or in that of law and order ! In all ages and in all 
times the tyrant or tyrants who destroyed the liberties of their 
countries did so under the pretext of protecting life, liberty, 
and property. Necessity is now known as the tyrant's plea. 
Under this plea, and this alone, the avowed necessity of suppress- 
ing the wicked and rebellious Ku-Klux clans ; under the false 
cry, known by the utterers to be false, that the State courts and 
State authorities are incapable of doing justice, this prosecution 
gravely proposes to your Honor to assume jurisdiction in the 
case of an alleged murder of a citizen of Mississij)pi, by other 
citizens of Mississippi, on the soil of Mississippi. The real ^jros- 
ecutors in this case are concealed. It is certain that the poor 
ignorant widow of 'the murdered man has been put forward by 
men behind the scenes, prompted by motives of private ven- 
geance or treason to the Constitution, and restrained only by the 
cowardice that belongs to malignity. The testimony proves be- 
yond all question that the witnesses for the prosecution have 
been suborned, and, so far as it aflPects the relators in this cause, 
that it is perjury in its most revolting form. Revenge has 



WILLIAM F. DOWD. 405 

cohabited witli perjury, and this prosecution is the offspring of 
the loathsome amour. 

" The law officer of the crown and the other gentlemen of the 
bar who conduct this prosecution have been fatally and cruel! v 
deceived. Even the Governor of the State, out of the secret 
service fund of $50,000, has employed able counsel to aid this 
jDrosecution in crushing the jurisdiction of the courts of Missis- 
sippi. I am sure that able lawyer and statesman was as cruellv 
deceived in reference to the true objects and aims of this prose- 
cution as the other gentlemen of the bar who conduct it. 

" Before entering on the discussion of the main, vital issue in- 
volved in this cause, I propose to refer briefly to the law of Bail 
under the Constitution and laws of the United States. 

' ' L Bail in all cases, except capital crimes, is a matter of right. 
In capital cases it is a matter in the sound discretion of the court. 
For this purpose testimony was introduced : The law rerpiires 
that on the return of the writ of haheas corpus the judge or 
court shall hear ' testimony,- and inquire into the nature and 
circumstances of the case, and the usages of law.' 1 Brightly 's 
Digest, 90-91 ; Habeas Corpus Act, ib., 301-2 ; 2 Brightly's 
Digest, 213, 214 ; Conkling's Treatise, 577-579. 

" In allowing a traverse of the return, and tlie admission of 
evidence on the trial of a writ of haheas corpus, th.e acts of Con- 
gress are more liberal and comprehensive than the laws of Mis- 
sissippi. See Code, 365. 

" The writ may be granted after indictment as well as before, 
and the only difference consists in the fact that after indictment 
the court may bail but not discharge on the evidence, if the 
court has jurisdiction. But in all cases wdien the coui-t has no 
jurisdiction, or if the relators under any circumstances are held 
in custody without authority of law, they are entitled to a final 
discharge. 

" The following cases in the United States courts sustain tliese 
views: Ex parts Milligan, 4 Wallace, 118; Keanrs case, 20 
Curtis, 89-91 ; United States vs. Hamilton, 3 Dallas, 17 ; 
ex parte Yeager, 8 AVallace, 94. 

" The object of imprisonment is not to punish, but to secure 
the attendance of the prisoner at the final trial. It is brutal and 
2tj 



406 BENCH AND BAE OF MISSISSIPPI. 

inhuman to pnnisli by imprisonment or otherwise before tlie 
party is foimd guilty. 8 Barbour, S, Court R., 162, 3-8. 

" In Mississij)pi the same principles are settled in the follow- 
ing cases: Ex parte Moore, 36 Miss. R., 137 ; Beal m. The State, 
39 Miss. Pt., 715 ; Wray's case, 30 Miss. R., 673. 

" Are not the parties entitled to a discharge in this case, when 
the indictment is manifestly founded on perjury ?" 

Colonel Do wd then referred to the testimony, and called atten- 
tion to its contradictions, discrepancies, and the false identifica- 
tion on the part of the witnesses who had pointed out as being 
among the prisoners whom they recognized at the killing, cer- 
tain gentlemen of Oxford who were bystanders, and had never 
been in Monroe County. He then proceeded : 

" Under the ruling of the court I am forbidden to comment 
on the testimony, and I forbear. I only refer to it to maintain 
the proposition that the true intent, meaning, and spirit of the 
acts of Congress require the court to discharge a prisoner when 
it is clear that he is held in custody by an indictment conceived 
in sin and sliapen in iniquity ; procured, upeld, and maintained 
by perjury. 

"II. This indictment, strij)ped of the immaterial verbiage, 
amounts to nothing more than the ordinary indictment in the 
State courts, against citizens of Mississippi, for the murder of a 
citizen of Mississippi. It is wholly unaiithorized by the Consti- 
tution or lasvs of the United States, and if valid, the Federal 
courts have exclusive jurisdiction of every case of trespass upon 
person or property, of all assaults and batteries, arson, burglary, 
robbery, and larceny, committed in the respective States. The 
first count of the indictment was ' that the defendants banded 
and combined together, and went in disguise upon the premises 
of Alexander Page, formerly a slave, and a man of color, now 
a freedman, and who was, under the Constitution of the United 
States, entitled to the protection of his life, liberty, and prop- 
erty, and with intent to oppress, threaten, and intimidate him, 
the said Alexander Page, and with intent to hinder and prevent 
him in the protection of his life and liberty, secured to him by 
the Constitution of the United States, and then and there did 
kill and murder the said Alexander Pao'e.' 



WILLIAM F. DOWD. 407 

" Nothing can exhibit in a stronger light the desperate straits 
to which the accomplished pleader, who drew this indictment, 
was driven, than the extraordinary fact that it is attempted to 
be founded on a provision of the Constitution of the United 
States ! Its conclusion is not ' against the form of the statute 
in such case made and provided,' but its language is ' contrary 
to the provision of the Constitution of the United States.' 

" The bar and bench of the world will bo startled at the an- 
nouncement that an indictment is founded on the organic laws 
of the land, on a constitutional provision, on a supposed grant 
of power to Congress, and not on a Congressional enactment to 
carry that power into execution. An indictment founded on 
Magna Charta ! An indictment founded on Petition of Eights ! 
But it is not sought to be fastened on a constitutional grant of 
power to Congress, but on a prohibition, a limitation on the 
power of the States. 

" The last clause of the first section of the Fourteenth Amend- 
ment declares that ' no State shall deprive any person of life, 
liberty, or property without due process of law ; nor deny to 
any person within its jurisdiction the equal protection of the 
laws. ' The pleader could not weave, twist, or work this lan- 
guage into the indictment. He was therefore driven to the 
necessity of averring that the relators committed the deed 
' with intent, there and then, to Idnder and prevent him, the 
said Alexander Page, in the protection of his life and liberty, so 
secured to him by the Constitution of the United States.' 

" To prevent hiwL in \\\& pyrotection. Not to hinder or prevent 
the Government from the exercise of its power as a protector ; 
that would be treason, or akin to it. But poor Page was killed 
to prevent him from his own protection. I never heard of but 
one such perversion of language. The brave hunter, holding a 
bear by the ears in a canebrake, finding his strength failing, 
shouted to his companions to run up to him and help him 
let go. 

" There are propositions in morals, law, and philosophy that 
need only to be stated to receive the unqualified condemnation 
of mankind. 

" The second count in this indictment is founded on the sixth 



408 BENCH AND BAR OF MISSISSIPPI. 

and seventh sections of the Enforcement Act, and avers, in 
substance, that the relators, citizens of Mississippi, disguised 
themselves and went on the premises of Alexander Page, another 
citizen of Mississippi, ' vrith intent to hinder and prevent him 
in th'e enjoyment of his personal security, secured to him by 
the laws of the United States, and him, the said Page, did then 
and there, on the 29th of March, 1871, did kill and murder, 
contrary to the form of the statute,' etc. This is nothing more 
nor less than an indictment for murder in the ordinary form, 
with a detail of the circumstances of aggravation, which is not a 
violation of any statute of the United States. 

" The Fifth Amendment of the Constitution of the United 
States is not a grant of power to legislate for the protection of 
the life, liberty, and property of persons and individuals in 
the several States, but is a prohibition on the power of Con- 
gress. 

" For the first time in the political and judicial history of this 
country, it is boldly affirmed and plausibly maintained that the 
prohibition of a power means a grant of power. If this mon- 
strous proposition cannot be maintained, the whole prosecution 
falls to the ground. 

" The legal term ' grant ' has its origin in the feudal system. 
It was a gift or conveyance from the crown, clothed with abso- 
lute power, of lands or franchises, or special privileges to inferiors, 
or to the subjects of its bounty. What is a prohibition ? It is 
to interdict, to forbid. The sovereign, the creator, commands 
the creature, ' Thus far slialt thou go, and no farther.' To 
confound the two terms, and make prohibition mean grant, is to 
confound all previous meanings and use of words, and to insult 
the understanding of mankind. 

"It is impossible to form a correct opinion of these words 
without a recurrence to first principles and to contempora- 
neous history. 

" When we attempt to construe the constitutions and laws of 
European States, we must start with the theorem that all power 
was vested in the crown. This power is supposed to be derived 
from God himself, and kings reign by divine right. All the 
powers enjoyed by their legislative bodies, all the privileges 



WILLIAM F. DOWD. 400 

and immunities enjoyed by citizens or persons, are grants from 
the king, voluntarily made, or wrung from liis reluctant grasp 
at the point of the sword by powerful barons, or by the simul- 
taneous uprising of a whole people, amid the throes, agony, and 
blood of a mighty revolution. 

" But on this continent the people are sovereign, and the 
source of all power. First the State Governments were formed, 
and certain powers were granted to them. Then the States and 
the people created the Government, the Constitution of the 
United States, and granted to it certain other powers. The 
original Constitution was mainly a grant of powers, with a few 
limitations on the powers of the States. Great alarm was mani- 
fested, and a widespread dissatisfaction expressed, that the new 
Government under its implied powers would destroy the liberties 
of the people and overthrow the State Governments. To still 
this gathering storm, the first ten amendments of the Constitu- 
tion were proposed and adopted. 

"All these amendments have received a judicial construction, 
and are declared to be prohibitions on the powers of the Gov- 
ernment, and not grants of power from the people of the 
States, 

" The Ninth Amendment declares that the enumeration in the 
Constitution of certain rights shall not be construed to deny or 
disparage others retained by the people. 

" The Tenth Amendment declares that ' the powers not dele- 
gated to the United States, nor prohibited by it to the States, 
are reserved to the States respectively or to the people.' 

" There stand the solid, massive granite walls between the re- 
serv^ed powers of the States and the people and those delegated 
to the General Government. They may be battered down with 
cannon ; the usurpations of Congress, combined with a corrupt 
or cowardly judiciary, may undermine them ; but they shall 
stand while a remnant of the spirit of our honored ancestry 
lives in the hearts of the American people. It is certain they 
will never fall before the blasts of political ram's-liorns, although 
the circuit may be completed more than seven times. 

" Grant, for the sake of argument, that these several prohibi- 
tions on the legislation of Congress, on the powers of the Federal 



410 BENCH AND BAR OF MISSISSIPPI. 

Government, may be termed guarantees, and that the rights to 
life, liberty, and property are protected in one sense, or secured 
by the prohibitions on hostile legislation on the part of Congress 
or the States, the great question remains unanswered, Do those 
limitations of power confer on Congress the power to legislate 
or provide for the punishment, of local crimes or offences com- 
mitted in the several States ? 

" Alexander Hamilton, one of the authors and great expound- 
ers of the Constitution, declared that these prohibitions embraced 
in the first ten amendments of the Constitution were unneces- 
sary ; because, he said, they are in reference to powers not 
granted by the people of the States ; and how can Congress 
legislate on any subject unless the power is conferred in express 
terms or by necessary implication ? 

" And with the ken of a prophet he predicted the very scene 
that is being enacted here to-day, when he declared that, if these 
amendments were adopted, the enemies of constitutional liberty 
might seize upon them as a pretext to legislate upon forbidden 
subjects. 

'' The Constitution was ordained and established by the people 
of the United States for themselves, for their own government, 
and not for the government of the individual States. Each 
State established a constitution for itself, and in that constitution 
provided such limitations and restrictions on the powers of the 
particular government as its judgment dictated. The people 
of the United States framed such a government for the United 
States as they supposed best adapted to their situation, and best 
calculated to promote their interests. The powers they con- 
ferred on this government were to be exercised by itself. The 
limitations on power, if expressed in general terms, are naturally, 
and we think necessarily, applicable to the government created 
by the instrument. They are limitations of power granted in 
the instrument itself ; not of distinct governments framed by 
different persons, and for different persons. These restrictions 
are obviously intended for the exclusive purpose of restraining 
the exercise of power by departments of the General Govern- 
ment. Some of them use language applicable only to Congress ; 
others are expressed in general terms. 



WILLIAM F. DOWD. 411 

" In every inliibition intended to acton State power, words are 
employed which directly express that intent. 

" It is universally understood, it is a part of the history of the 
day, that the great revolution which established the Constitution 
of the United States was not effected without immense opposi- 
tion. Serious fears were entertained that those powers, which 
the patriot statesmen, who then watched over the interests of 
our country, deemed essential to tinion, and to the attainment of 
those invaluable objects for which the union was sought, might 
be exercised in a manner dangerous to liberty. In almost every 
convention by which the Constitution was adopted, amendments 
to gua/rd against the abuse of power were recommended. These 
amendments demanded security against the apprehended en- 
croachments of the General Government. Baron vs. City of 
Baltimore, 7 Peters' E., 243-7, 8, 9. 

" Yet the law officer of the crown absuhitely quotes this de- 
cision in support of the apprehended encroachments of the 
General Government ! The same doctrines are maintained in 
Puryear's case, 5 Wallace, 476 ; Twitchell's case, 7 Wallace, 
324 ; Fox vs. State of Ohio, 5 Howard, 434 ; Withers vs. Buck- 
ley, 20 Howard, 90, 91. 

"In the original Constitution there are prohibitions on the 
powders of the States as well as on the powers of the Federal Gov- 
ernment (citing the 10th section of the 2d article). 

" It is a remarkable fact that Congress in all its legislation, ex- 
tending over nearly a century, has never attempted to legislate 
against a sovereign State, or on subjects embraced witliin the 
several limitations on the State and National Governments before 
enumerated. 

" The States have of ten passed laws impairing the obligation of 
contracts, and emitted bills of credit. Did Congress ever com- 
mit the inconceivable folly of attempting to make it a criminal 
offence, and punish the individuals for obeying the laws of their 
State ?' The honor of asserting such a power remained for this 
prosecution. In the century of our national existence, which 
has nearly passed away, lived Hamilton, and Jay, and Jefferson, 
and Adams, and Madison, and Clay, and Webster, and Calhoun, 
and Marshall, and Story, and Parsons, and Taney, and last, 



412 BEXCH AIS^D BAK OF MISSISSIPPI. 

tliougli not least, our own great Sharkey. It never occurred to 
any of these ilhistrions statesmen and jnrists tliat a prohibition 
was equivalent to a grant. 

"But the learned gentlemen for the prosecution gravely insist 
that Congress has passed laws to punish individuals for counter- 
feiting coin of the United States, a power that is prohibited to 
the States. 

" They seem strangely to forget that this legislation is not 
founded on the limitation on the power of the States, but upon 
an express grant of power in the 8th section of the 2d article : 
' Congress shall have power to coin money, regulate the value 
thereof,' etc. This power was vested in the Federal Govern- 
ment, and prohibited to the States. It is therefore exclusive, 
and the power to punish for the crime of counterfeiting is 
, absolutely necessary to carry into effect one of the most im- 
portant powers delegated expressly. 

"How, then, can the Government of the United States act 
upon the clauses in the Constitution imposing limitations on the 
powers of Congress and of the States ? If the State of Missis- 
sippi, in violation of the 1st section of the Fouj-teonth Amend- 
ment, shall pass a law ' to deprive any person of life, liberty, 
or property, without due process of law, or a law denying to 
any person within its jurisdiction the equal protection of the 
laws,' what would be the remedy ? Can a Congress, filled with 
partisans maddened from an exciting contest, determine whether 
the law is a violation of this provision of the Constitution or 
not ? The Legislature of the State might hurl back her 
anathemas at Congress, and demand of her officers the execu- 
tion of the law. It is mainly for this reason that the Federal 
courts of the United States were established. The judiciary is 
a co-ordinate department of the Government, and is entirely 
indej^endent of the legislative and executive. An al^solute des- 
pot combines all these powers ; and it is immaterial, for all the 
practical purposes of life, whether this despot is called a kaiser, 
an emperor, a king, a czar, a parliament, a congress, or a presi- 
dent. 

" Every government must in its essence be unsafe and unfit for 
a free people where a judicial department does not exist with 
powers coextensive with the legislative department. Where 



WILLIAM F. DOWD. 413 

there is no judicial department to interpret, pronounce, and 
execute the hiw, to decide controversies, and to enforce rights, 
the government must either perish hj its own imbecihty, or the 
other departments of the government must %isnrp powers for 
tlie purpose of couimanding obedience, to the destruction of 
hberty. The will of those who govern will become, under such 
circumstances, absolute and despotic ; and it is wholly imma- 
terial whether such power is vested in a single tyrant or an 
assemhly of tyrants. 

"Montesquieu says that there is no liberty if the judiciary 
power be not separated from the legislative and executive pow- 
ers. Personal security and private property rest entirely upon 
the wisdom, the stability, and integrity of courts of justice, A 
despotism is rendered more intolerable and oppressive when the 
actual administration of justice is dej)endent upon caprice or 
favor, upon the will of the rulers, or the influence of popularity. 
y^\\Qn power becomes rlght^ it is of little consequence whether 
decisions rest upon corruption or weakness, upon accidents erf 
chance or upon deliberate wrong. A judicial department is in- 
dispensable to administer justice and protect the innocent from 
injury and usurpation. 

" The power of interpreting the laws involves necessarily the 
function to ascertain whether they are conformable to the Con- 
stitution or not ; and if not so conformable, to declare them 
void and inoperatii)e. As the Constitution is the supreme law 
of the land, in a conflict between that and the laws, either of 
Congress- or the States, it becomes the duty of the judiciary to 
follow that only which is of paramount obligation. Otherwise 
the acts of the legislative and executive would in effect become 
supreme and uncontrollable, notwithstanding any prohibitions 
or limitations contained in the Constitution, and usurpations of 
the most unequivocal and dangerous character might be assumed 
without any remedy within the reach of the citizens. Story (.n 
the Constitution, Sec. 1573 ; Federalist, ?so. 78 ; 1 Kent's 
Corns., Sec. 20, p. 420-6. 

" To make these great principles enduring and effective, the 
judges hold their offices for life, and are regarded as the bul- 
warks of the Constitution against legislative encroachments. 

" It is, then, a naked, unmitigated usurpation of power for 



414 BENCH AND BAR OF MISSISSIPPI. 

Congress to declare, iinder the 1st article of the Fourteenth 
Amendment, that the law of a State impairs the rights of 
personal security and private property. 

" But it is contended that if Congress cannot indict and punish 
a State, it can usurp the powers of the judiciary, determine when 
a State shall deprive by law any person of life, liberty, or prop- 
erty, and then proceed to punish the officers and people of the 
State for obeying its laws, by direct legislation. 

" To arrive at this monstrous perversion, the words of the Con- 
stitution are stricken out, the word State is obliterated, and the 
word person inserted in its stead, and it is made to read thus : 
' Nor shall any person in any State deprive any other person of 
life, liberty, or property without due process of law,' and 
Congress may enforce this by appropriate legislation. This 
would strike down at one blow the entire judiciary system of 
the States. If the eminent lawyers who compose the Judiciary 
Committee of the Senate had been bereft of all patriotism, a 
jft'oper regard for their own reputations, and a decent respect 
for the opinions of mankind, would have deterred them from 
the commission of a deed so fatal to the liberties of their coun- 
try. Does any sane man believe that the great States of the 
Union would have committed suicide hy the adoption of such an 
amendment ? Congress could immediately have passed laws to 
punish murder, arson, larceny, assault and battery, to allow 
actions for damages for trespasses to the person and property in 
the Federal courts, and, as will be hereafter shown, could make 
the jurisdiction of these courts exclusive. 

' ' When the law officer of the crown and the learned retained 
counsel tell this court ; when the Congress of the United States 
declare, in the Enforcement Bill, that the laws of the United 
States — the Governrrhent of the United States — grants to the 
I'EOPLE their rights and privileges, they openly throw around 
their shoulders the imperial purple, and trample down all that is 
sacred and dear to every American citizen. 

" Can the creature grant to the creator f The people, the sov- 
ereign people of the United States, and the States, have granted, 
delegated, certain powers to the Federal Government, and re- 
served all others to themselves. The ungrateful creature now 



WILLIAM F. DOWD. 415 

turns on its creator, and says, ' I grant you rights and privi- 
leges ! ' It is blasphemy ! But Congress never intended to 
give birth to such a legal and moral monster. It is an unwar- 
rantable perversion of the Constitution and laws, and is the off- 
spring of this abominable prosecution. When we shall here- 
after show the true intent and meaning of the 6th section of 
the Enforcement Act, I expect to defend successfully the Gov- 
ernment of my country from this aspersion on its good name 
and fame. 

" Admitting, for the sake of argument, that the rights of the 
people of the several States to life and property are secured by 
the limitation, in the Constitution, on the powers of the States 
and of Congress, that the rights, privileges, and immunities of 
American citizens were gkanted by the sovereign people, and 
defined in the Constitution, counsel for the prosecution assume 
and take for granted the whole question at issue when they 
say that Congress can pass laws to punish local offences against 
person and property, and confer on the Federal courts juris- 
diction to try jpersons in the several States for murder, larceny, 
and trespass to person and property. 

" ' The powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people. ' Tenth Amendment 
Const. 

" Where did the power to try persons in a State for a violation 
of the criminal laws originally reside ? It is not denied that it 
belonged exclusively to the Legislature of the State to define 
crime and prescribe its punishment ; to the courts of the 
several States to enforce law thus adopted, before the formation 
of the Federal Government. The right to life and proi>erty, the 
power of the State courts to punish crime, belonged to the peo- 
ple and to the respective States, when the ground on which our 
magnificent national Capitol stands was a wilderness. It came 
with the Mayflower ; it fastened on Plymouth Rock ; it was the 
solid, imperishable granite, laid as the foundation of every 
American State. The right to life and property are not words 
of modern origin ; they are older than the common law of Eng- 
land ; they are recognized— not granted— hy the law of Moses, 



410 BENCH AND BAE OF MISSISSIPPI. 

and their history goes back to the origin of the human race, and 
of all human governments This right is a part of the common 
law of all nations through all time. It was a part of the com- 
mon law before it was written, and is interwoven as a part and 
parcel of the British constitution. When and where did the 
States, or the sovereign people, delegate to Congress or to the 
Federal courts the power to try local offences against life and 
property ? Where shall this ragged, naked, wretched, vagrant 
power find a foothold in the Constitution and laws of the land ? 
It is tirst located in the Htli section of the Enforcement Act ; 
driven from this, it seeks a lodging in the 4th article of the 
original Constitution, providing that citizens of each State shall 
be entitled to all the privileges and immunities of citizens of the 
several States ; driven from this, like the vital spark in the dying 
body, it runs through all the lanes and avenues of the Constitu- 
tion and the laws, and shrieks for help, bat shrieks in vain : it 
dies right here, in this court-room, on the very spot of its origin. 

" Judge Story says, in his immortal Commentaries : ' The Gov- 
ernment of the United States is one of limited powers, leaving 
ail residuary general powers in the State Governments, or to the 
people thereof. The jurisdiction of the General Government is 
confined to a few general objects which concern the general wel- 
fare of all the States. The State Governments have full super- 
intendence and control over the immense mass of ^oc«/ interest in 
tlieir respective States, which connect themselves with the feel- 
ings, the affections, the municipal institutions, and the intei'nal 
arrangements, of the whole population. 

" ' They possess the immediate administration of justice in 
all cases, civil and criminal, which concern the property, 
PERSONAL RIGHTS, K^v> peoceful puvsuUs of their own citizens. 
The powers of the States extend to all objects which in the 
ordinary course of human affairs concern the LIVES, liber- 
ties^ and property of the people ! ' Story on the Constitution, 
Sees. 510-13 ; Federahst, No. 45 and No. IT. 

" With what overwhelming power do these eloquent words, 
this massive logic, fall on the arguments of the prosecut- 
ing counsel ! With the highest respect for tlieir learning and 
ability, I must be allowed to say that, however lofty their aspira- 



WILLIAM F. DOWD. 417 

tions may be, however high they may elevate the strnctnre of 
professional fame, it will never rise higher than 07ie Stonj ! 

' ' Let us keep our eyes steadily on the great question. It is not 
whether the sovereign people guaranteed or secured in the Con- 
stitution rights of life and property, by prohibitions and limita- 
tions ; not whether they defined citizenship and authorized Con- 
gress to legislate on the subject ; but did the States or people 
grant or surrender to the Federal Government the power to 
punish local crimes and misdemeanors against personal security 
and private property ? 

" If this power was never surrendered by the States, or con- 
ferred by the people on Congress, it follows that the words used 
in the 6th section of the Enforcement Act, to the effect that if 
two or more persons conspire and go in disguise on the premises 
of another, with intent to intimidate any citizen^ with intent to 
hinder his free exercise and enjoyment of any right or jprivilege 
granted or secured to him hy the Constitution or laws of the 
United States^ signify an unmitigated, naked usurpation of powei* 
by Congress, and it is the solemn duty of this court to declare it 
null and void. But, taking the whole act togetiier, it is mani- 
fest that this was not the intention of Congress, as we shall here- 
after demonstrate. 

" ' Y. All persons born or naturalized in the United States and 
subject to the jurisdiction thereof are citizens of the United 
States, and of the State wherein they reside.' Fourteenth 
Amendment, Sec. 1. This is nothing more nor less than a clear 
definition of the class of persons who are citizens of the United 
States. No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the United 
States. This, as we have seen, is only a limitation on the legis- 
lation of the States. 

" The privileges and immunities of a citizen are wholly distinct 
from the absolute rights of the individual. The Constitution 
everywhere uses the term person in reference to the absolute 
right of the individual as contradistinguished from the privi- 
leges and immunities as a citizen. The office of President of 
the United States, member of Congress, elector, cabinet offi- 
cers, judges of the Federal courts, citizens of the United 



418 BENCH AND BAE OF MISSISSIPPI. 

States, are all created by the sovereign people, with their privi- 
leges and immunities defined m the Constitution, Granting that 
Congress may legislate, and make it a felony to go on the premises 
of one of these officers, with intent to hinder him while in the 
performance of his duties, and with intent to deprive him of 
the privileges and immunities of his office, it certainly does not 
follow that the States liave thereby surrendered their power to 
the Federal courts to punish a crime against the absolute rights 
of the individual. Your Honor is the judge of the district and 
circuit courts of the United States ; if two or more persons in 
disguise were to enter this court-room, drag you from the bench, 
with intent to hinder and prevent you from holding your court, 
and discharging the duties of your office, it would be an invasion 
of your privileges and immunities as a judge, and Congress can 
make it a felony, and the Federal courts might inflict the pun- 
ishment. But, sir, you are a resident of Lafayette County, Mis- 
sissippi. If the same disguised persons w^ere to go on your 
premises, while not in the discharge of your official duties, with 
intent to deprive you of your life, or to commit any other out- 
rage on the person or property of R. A. Hill, as an individual, 
from motives of private vengeance, no impartial lawyer will 
contend that the State court would not have exclusive jurisdic- 
tion to punish the ruffians ; and an indictment could not be 
maintained in the Federal court. If the honored and lamented 
President Lincoln had been assassinated while on a visit to his 
home in Illinois, and not in discharge of his official duties, 
would that great State have surrendered the right to try the 
assassins ? Would any member of the able bar of that State say 
that, because of his privileges and immunities as President of 
the United States, the Federal courts could maintain jurisdiction 
to punish the assassins ? 

" A citizen of the United States is as much the creation of the 
sovereign people in the formation of the Government, and his 
' privileges and immunities ' are as much the same creation, 
as the ' privileges and immunities ' of the office of President or 
judge. 

" Before the formation of our Government a citizen of the 
United States had no existence. What are his privileges and 
immunities ? 



WILLIAM F. DOWD. 419 

" 1. First and foremost is the right of suffrage— tlic riglit to 
vote. This right lies at the foundation of the whole grand 
fabric of the Republic. If the murdered man, Page, had been 
exercising the right to vote, if any election had been in progress, 
if the assassins had gone to his premises to hinder or prevent 
him in the right of voting, this would have been an invasion of, 
and an attack on, him as a citizen. But this is not pretended 
in the indictment. 

'' 3. An American citizen has the right or the ' privilege ' to 
hold any office within the gift of the American people. If 
either of the ignorant, degraded black wretches who perjured 
themselves on this trial were a candidate for the office of Presi- 
dent, or member of Congress, or if he held the office. Congress 
may legislate on the subject, and the Federal courts may punish 
persons for 'hindering and preventing him in the enjoyment 
of this right. ' 

" B. The 2d section of the -Ith article of the Constitution 
provides that citizens of each State shall be entitled to all privi- 
leo-es and immunities of citizens of the several States. Incom- 
prehensible as it appears, this provision is claimed by counsel as 
a grant or surrender by the several States of the exclusive power 
to try local crimes— for murder, arson, larceny, etc. It has too 
often received a judicial construction to admit of doubt or con- 
troversy. 

" In a given State every citizen of every other State sliiM have 
the same privileges and immunities which the citizens of that 
State possess. They are not subject to the disabilities of alien- 
age ; they can hold property by the same titles by which every 
other citizen may hold it, and no other ; discriminating legisla- 
tion against them would be unlawful. Lemon vs. The People, 
20I^ew York R., 608. 

" The right of a citizen of one State to pass through or to reside 
in any othS- State for purposes of trade, agriculture, profes- 
sional pursuits, or otherwise ; to claim the benefit of the writ of 
haheas corpus; to institute and maintain actions of any kind m 
the courts of the State ; to take, hold, and dispose of property, 
eitherreal or personal, maybe mentioned as someof the particu- 
lar privileges and immunities of citizens which are clearly 



420 BENCH AND BAE OF MISSISSIPPI. 

embraced in tlie provision of the Constitution. Corfield vs. Car- 
gill, 4 Washington C. C. R., 380-1 ; Smith vs. Moody, 26 In- 
diana R., 302. 

" But it does not embrace privileges conferred by the local 
laws of the State. Connors vs. Elliott, 18 Howard, 591 ; Murray 
vs. McCarty, 2 Manford, 393. 

" Although this provision has stood in the Constitution for 
nearly a century, the great statesmen of the times have never 
found it necessary to legislate on the subject. Granting that 
Congress has the jjower to impose fines and penalties on a per- 
son in one State for hindering and preventing a citizen of 
another State in the enjoyment of the privileges and immunities 
secured in this clause of the Constitution, how is it possible, by 
any perversion of language, or any rule of construction, to 
make its provisions embrace the facts stated in this indictment ? 

" Page, the murdered man, was not a citizenof another State, 
but of Mississippi ; and, it is alleged, was murdered by citizens of 
Mississippi. It was, therefore, a violation of the penal laws of 
Mississippi, and not an invasion of the privileges and immunities 
of a citizen of another State. Strange as it may appear, on this 
extraordinary perversion of this provision of the Constitution is 
thrown the main argument of the counsel for the Government. 

"IV. A citizen of the United States, under our treaty stipula- 
tions with foreign powers, has the right to travel, trade, and 
carry on extensive commercial transactions everywhere beneath 
the star-lighted heavens — in the streets of London, or Peking, or 
St. Petersburg, on the land or on the sea ; he has only to ex- 
claim, ' I am an American citizen,' and he is instantly covered 
Avith a shield no earthly power dare strike or assault. This was 
one of the proudest boasts of Rome. The protection extended 
to her citizens is celebrated in story and song ; and our Federal 
Government deserves all the eulogies thus bestowed on that 
celebrated empire. Yet while Rome armed her proconsuls 
with almost absolute power for the government of her prov- 
inces, she never interfei'ed with the local administration of 
justice. 

" If a State shall make or enforce a law which shall abridge 
the privileges or immunities of a citizen of the United States, 



WILLIAM F. DOWD. 421 

as we have before seen, it tlieii devolves on the judicial depart- 
ment of the Government, the Federal courts, to determine on the 
merits of the law, and declare it unconstitutional and void. 

" It will thus be seen that there is a wide field for the legisla- 
tion of Congress to protect and maintain the rights, privileges, 
and immunities of an American citizen without usurping the 
reserved powers of the States to punish persons or mdividuaU 
for local offences against the criminal laws of the State. 

" Half the controversies in the world arise from a misappre- 
hension of the meaning of terms. What is the meaning of the 
phrase ' citizen of the United States ' i He is a member of 
the political body which holds the power and conducts the Gov- 
ernment through its representatives. He is, therefore, a constit- 
uent member of the sovereignty. Scott vs. Sanford, 19 How- 
ard, 404-5." 

Colonel Dowd here referred to the definition of this phrase, as 
already discussed by one of his associates, and then proceeded : 

" What is meant by the 5th section of the Fourteenth Amend- 
ment, which declares that Congress may enforce by nppvopr'mtc 
legislation the provisions of the article ? The word ' appropri- 
ate' has received a judicial construction. It means that which 
is necessary. 

" The 1st section clothes Congress with the power to protect 
the citizen as such in the enjoyment of his political riglits. 
Under the 2d section it may apportion representatives among 
the States. Under the 3d Section it may legislate for the pun- 
ishment of the class of persons described, for accepting or hold- 
ing an office contrary to its provisions. The 4th section is but a 
limitation on the power of Congress and the States, and no legis- 
lation can be framed or had, or is necessary or ajipropriate. 

" Having thus demonstrated that the sovereign people and the 
States have only conferred on the Government and Congress the 
power to protect its officers and citizens as such, and has with- 
held among the reserved powers the exclusive right to the States 
to define and punish all offences against the person and propeity 
within the limits of the States respectively, we now com(; to the 
consideration of the Enforcement Act, and the Civil Rights 
Bill, which constitutes a part of it." 
27 



422 BENCH AND BAE OF MISSISSIPPI. 

Of these Colonel Dowd here entered uj^on an elaborate dis- 
cussion, in which he commented at length npon their varions 
features and their import, and contended that so far as they 
affect the case at the bar, these" laws were not intended to violate 
the provisions of the Constitution ; but that, if the Enforcement 
Act admitted the construction placed upon it by the counsel for 
the Government, it was a palpable violation of the Constitution, 
a naked, unmitigated usurpation of power, subversive of the 
liberties of every American citizen, and the Federal courts must 
declare the act unconstitutional and void. 

That the Civil Rights Bill was aimed solely at the hostile leg- 
islation of some of the States which were reluctant to admit the 
full equality of the negro race before the courts, and was never 
intended to give the Federal courts jurisdiction of an assault 
growing out of a personal feud between citizens or persons in 
the same State. 

" It is not pretended," said he, " that the relators murdered 
Alexander Page under the color of any law or custom of the 
State of Mississippi, which deprived him of his equal rights as a 
citizen, and for which the 2d section of the act provides a remedy 
and prescribes the punishment of fine and imprisonment. But 
the astounding proposition is maintained by the counsel for the 
Government that the negro is not only made the political equal 
of the white man, but special p>rivileges are conferred on him 
by this act, in the teeth of the statute that he shall hav^e the 
EQUAL benefit of all laws. It is insisted that the negro wife 
may prosecute the murderers of her husband in the Federal 
courts ; but it is conceded that if a negro murders a white man, 
or one white man another, or a black fiend commits rape on a 
white woman, then the white friends of the victim cannot prose- 
cute the offender in the Federal courts, but are confined to the 
^tate courts ! This is technically styled ' Equality before the 
LAW ! ' " 

After commenting at length, and in an able and exhausting 
manner, upon the intention and projDer construction of the va- 
rious features of these acts, Colonel Dowd proceeded as fol- 
lows : 

^' YII. Nothing: can be more conclusive. Nothino- which the 



WILLIAM F. DOWD. 423 

Iniman tongue can utter will so utterly annihilate tlie whole 
argument of the counsel for the prosecution as a careful perusal 
of the 8th section of the Enforcement Act. It provides 
that ' the district courts of the United States, within their re- 
spective districts, shall have, exclusive of the courts of the 
SEVERAL States, cognizance of all crimes and offences connnitted 
against the provisions of this act.' The Civil Ilights Bill con- 
tains the same provision. If, then, the crime of murder, or 
arson, or burglary, or assault and battery, is connnitted in Mis- 
sissippi by one citizen of the State against another, the offence 
can only be tried in the Federal court ! If a trespass is commit- 
ted by one citizen of Mississippi upon the property of another, 
both being citizens of the United States, the Federal court has 
exclusive jurisdiction. Counsel seek to avoid the force of this 
blow by asserting that this section of the act is unconstitu- 
tional ! This will not do ! If Congress has the power to define 
a crime, and fix its punishment, and to confer jurisdiction on 
the Federal courts, it has the j)Ower to make that jurisdiction 
concurrent with the State courts or exclusive in tlie Federal 
courts. This is as well settled as any rule in the annals of ju- 
dicial decisions. Thus, in the Judiciary Act of 1789, the jurisdic- 
tion of the Federal courts to entertain suits between citizens of 
different States is made concurrent with the jm'isdictiun of the 
State courts. It was for a long time a disputed question 
whether, in a case where the Constitution authorized Congress 
to invest the Federal courts with jurisdiction, it had the power 
to make that jurisdiction concurrent with the State courts. But 
it has never been questioned that Congress might make the juris- 
diction of the Federal courts exclusive. The illustrious Story 
maintained the former, and the majority of the court the lat- 
ter view. * 
" In his able dissenting opinion, in the case of Moon vs. IIous- 
ton, 5 Wheaton'sPu, 47-70, Judge Story says : ' Can the national 
courts be ousted of their jurisdiction l)y the trial of the offender 
in a State court ? Would an acquittal in a State court be a good 
bar upon an indictment for the offence in the national courts i 
Can the offenders against the letter of the Constitution of the 
United States be subject, for the same offences, to be twice ]nit 



424: BENCH AND BAK OF MISSISSIPPI. 

in jeopardy of life and limb ? These are questions which can- 
not be answered in the affirmative.' " 

Colonel Dowd here read and commented at length npon the 
opposing opinions of Judge Storj, Judge Kent, and other au- 
thorities, upon the question of the jurisdiction of the Federal 
courts, and the power of Congress to make it concurrent or 
exclusive. 

" It follows, inevitably — and no human ingenuity can avoid 
the conclusion — that if this indictment can be maintained on its 
allegations, and the proof taken in the cause, that a citizen of 
Mississippi who murders another cannot be prosecuted and con- 
victed and punished in the State courts ; if the doctrine con- 
tended for is true, the rights of property are as sacred as the 
rights of the person ; are protected by the same constitutional 
and legal guarantees ; and Congress may enact laws to punish, 
or provide for damages, in every case where the rights of prop- 
erty are invaded. Let this be established as the law of the land, 
and every State court crumbles into dust. This court could not 
try all cases of this character now pending in Mississippi in a 
half-century. The Federal Government must make every cir- 
cuit in the State a district, and appoint its clerks, marshals, and 
judges. It is only necessary to contemplate the terrible picture 
to place on it the seal of your unqualified condemnation." 

At this point Colonel Dowd entered upon the conclusion of his 
argument, in which he rehearsed the character and circum- 
stances of the prosecution, and contended that the officers of 
Monroe County and the courts of the State were thoroughly 
disposed and fully competent to do their whole duty. He de- 
picted in glowing terms the inevitable consequences had this 
first effort to strike down the entire judiciary of a State been 
made in New York, in California, or in Indiana. " This is not 
the cause alone," said he, " of a whole neighborhood of honorable 
gentlemen. Every American citizen has a deep interest in the 
struggle. If the jurisdiction is maintained, the Government of 
the United States is clothed with absolute and despotic powers. 
I plead for every American citizen ! I plead for the generations 
who are to come after us ! I plead the cause of justice and 
human freedom all over the habitable globe !" 



WILLIAM F. DOWD. 425 

Colonel Dowd concluded his argiTment with a lengthy and elo- 
quent peroration, and closed with the following appeal to the 
court : 

" From the final trial there is no appeal from your decision. 
The terrible responsibility rests on you alone. Discharge these 
men ! Order them, if you please, into the custody of the State 
officers. I pledge myself they shall stand the trial. I know 
your learning and ability as a judge, your purity as a man. You 
stood by the Union in the darkest hours of its fortunes. Stand 
by its Constitution now ! The judicial system of my State is the 
sun and centre of her form of government. Let it shed its 
light ! Let it not be shorn of its beams, remaining in a baleful, 
disastrous eclipse — an object of derision to its enemies and of 
melancholy pity to its friends ! Eather let the mailed hand of 
the wa,rrior strike it from existence. Rather let a usurping Con- 
gress blot it out at one stroke. Let it go down, like the sun in 
our own Southern seas, in one unclouded blaze of living light ! 
Plunge us at once in the dark, moonless, rayless, starless night 
of anarchy and blood, upon which no dawn shall ever rise forever 
and ever. Then let eternity place its seal on the awful crime !" 

The prosecution remained disarmed and paralyzed, but the 
issue was too momentous ; the prisoners were not discharged, 
nor remanded to the custody of the State authorities, but they 
were admitted to bail. It is a remarkable fact that soon after 
this trial Colonel Dowd was invited by the Government to accept 
the position of Assistant District-Attorney to aid in the prosecu- 
tion of all other cases which might arise in the Northern District 
of Mississippi under the Civil Eights Bill and Enforcement Act. 

" In my troth," said Queen Elizabeth, who happened to be 
in the Court of King's Bench when Sir Thomas Egerton, after- 
wards Lord Ellesmere, was arguing a case against the Crown, " he 
shall never plead against me again," and immediately caused 
him to be made one of her counsel. And the Government did not 
intend that Colonel Dowd should again appear in such a damnify- 
ing attitude to its cherished purposes. To his occupancy of this 
position his friends, and particularly his partner, Colonel Sale, 
were strenuously opposed, the latter declining to participate 
either in its duties or the large fees promised. But Colonel Dowd 



426 BENCH AND BAE OF MISSISSIPPI. 

contended that it was a province of liis profession to defend 
thieves and murderers for pay-, and he did not see why he 
should not do the same for a corrupt government ; but whether 
he ever accepted the appointment or not, lie never appeared 
before the Federal court in that capacity. 

Colonel Dowd possessed a vivid and fruitful imagination, 
Avhich often clothed his oratory in the garb of hyperbolism, yet 
his illustrations were so clear and his imagery so apt that the 
most overwrought coloring could not detract from the symmetry 
of his figures. 

A few years before his death he was invited to address the 
Ladies' Memorial Association of Aberdeen. This was on Dec- 
oration Day, May ISth, ISTi, an occasion which quickened the 
loftiest sentiments of his nature and called forth the most 
eloquent coruscations of his genius. After eloquently sum- 
ming the sentiments and motives which actuated the South- 
ern people throughout the mighty struggle, and depicting in 
terms of lightning flash the grandeur of patriotic martyrdom, 
and the glory achieved by the Southern soldiery, with a sublime 
gradation he turned from the dry bones of the dead but im- 
mortal past to the fresh and living present, to the budding pros- 
pects of the opening future, and compared the Union to the 
river St. Lawrence, " which, taking its rise in the Arctic re- 
gions, frozen by ice, retarded by hills, persistently forces its way 
until it widens into grand rivers, magnificent lakes, and inland 
seas, covered with the commerce of half a continent, and calmly 
floats past splendid cities, populous towns, green meadows, and 
supplies the cattle u]3on a thousand hills. 

' ' Suddenly the great river reaches the rapids of Niagara. With 
the energy and power of the (lulf Stream, roaring like the ocean, 
furious and exasperated, it rushes to its doom over the terrible 
falls, shaking the solid rock-ribbed earth as it goes down ; 
shivered into foam and sj^ray, wave beating against wave, cur- 
rent against current, the mass plunges into the Devil's Hole, 
where, governed by no laws, filled with the wrecks of the 
dead past, wild, confused, and distracted, they break themselves 
in vain against the granite walls, and madly whirl and rave, 
round and round, in one dread maelstrom. 



WILLIAM F. DOWD. 427 

" Do the waters thus remain in this gulf of despair ? No ! 
by the eternal law, ever restless, ever moving, ever striving, they 
gradually lind their way out. Again the grand river moves 
smoothly ; again the wealth and commerce of half a continent 
floats on its surface and gladdens its shores. It glides through a 
thousand beautiful, lovely islands, and majestically enters the 
great ocean." 

Colonel Dowd had but one fault, and one which often invades 
the purlieus of professional eminence. In his later days he be- 
came addicted to a rather excessive use of stimulants, not, how- 
ever, in a spirit of debauchery or frivolous conviviality, but to 
quicken his overburdened physical energies, and to satisfy a 
craving for mental excitement which the monotonous surround- 
ings of professional routine no longer afforded. 

He was a kind, chivalrous, and generous man, v/ith a heart 
dehiscent to every touch of charity, and a sympathy sensitive to 
every appeal of misfortune. In his private and social relations 
he was an affectionate husband, a kind father, and an everlast- 
ing friend. 



f 



CHAPTER XII. 



THE BAR— EMINENT LAWYERS— 1850-1880. 

FULTON ANDERSON GEORGE L. POTTER WILLIAM A. LAKE JAMES 

PHELAN — -WILLIAM R. BARKSDALE HARVEY W. WALTER. 



FULTON ANDEKSON. 

The subject of this sketch was born in Knoxville, Tennessee, 
on the Sth of March, 1820, and was educated at the University 
of Nashville, where he was graduated in 1836, at the early age 
of sixteen years. On completing his education he studied law 
under his father, Judge William E. Anderson, and at the age of 
nineteen obtained license to practice his profession. 

In 184:0 he removed to Mississippi and settled at Raymond, 
in Hinds County, where, during that year, he made his first pub- 
lic speech in advocacy of the election of Harrison and Tyler. 
So brilliant were the manifestations of his genius and so rapid 
his professional ascent, that he soon achieved a distinguished 
position at the bar, and in 181:7 was chosen State's Attorney 
for the district composed of the counties of Hinds and War- 
ren ; but disliking the duties of a public prosecutor, he re- 
signed the attorneyship in 1848, and resolved never again to 
prosecute for a fee. 

In 1848 Mr. Anderson was married to Miss Mary Yerger, an 
elegant and accomplished lady, the oldest daughter of Hon. 
George S. Yerger, of Jackson, and in 1849 removed to that 
place and formed a copartnership with that distinguished gen- 
tleman. This was for many years, until the death of Mr. Yer- 
ger, one of the leading firms at the bar of the High Court of 
Mississippi. 



430 BENCH AND BAE OF MISSISSIPPI. 

As a lawyer Mr. Anderson was learned, diligent, and astute, 
and was one of two or tliree gentlemen whose respective claims 
to the meed of superiority at the bar of the High Court was a 
matter of contention among their friends. His knowledge of 
the law was thorough and comprehensive, and his powers of ar- 
gument were of the highest order ; indeed, it is doubtful 
whether a more logical mind than his could be found in the 
annals of the Mississippi bar. He was a gentleman of refined 
sentiments and a high sense of honor ; stern and unyielding in 
the performance of duty, he was courteous and suave in his 
professional deportment and social etiquette. 

During the war Mr, Anderson was elected to the Legislature, 
and was a candidate for a seat in the Confederate States Senate, 
but was defeated by lion. J. W. C. Watson. In 1805 he was 
appointed by Governor Humphries, under a resolution of the 
Legislature, one of the counsel to aid in the defence of ex-Presi- 
dent Davis, should he be brought to trial for treason by the 
United States Government, as w^as then threatened ; and in the 
failure of the occurrence of that event, Mr. Anderson lost an 
opportunity for the exercise of his eloquence, his legal learning, 
and logical powers, which would have given him, no doubt, a 
world-wide renown. 

He was in politics an ardent Whig, and was a co-operation 
candidate for the Convention of 1861, but was defeated. In 
January, 1861, he was sent as a commissioner on the part of 
Mississippi to solicit the concurrence and co-operation of Vir- 
ginia in the measures of secession ; audit was not for Thucydides 
in his elegant delineation of the events preceding the Peloponne- 
sian war to describe a more accomplished embassy than that per- 
formed by Mr. Anderson to the capital of Virginia. His glow- 
ing summation of the wrongs already inflicted, as well as of 
those in process of perpetration, upon the lights of the Southern 
States, fell in stirring strains upon the proud ears of the patri- 
otic gentry of the Old Dominion ; and while they listened to 
his eloquent appeals to their ancestral renown, the statesmen of 
the old school recalled the glory of other days, and felt that the 
time had arrived for rekindling the fires of Bunker Hill and of 
Yorktown. The following is the full text of his speech deliv- 



FULTON ANDERSON. 431 

ered before tlie Convention of Virginia, in'tfie city of Ricliinond, 
February IStli, 1861 : 

" Gentlemen of the Convention: Honored by tlic jj^overn- 
ment of Mississippi with lier commission to invito your co-oper- 
ation in tbe measures wliich slie has been compelled to adopt for 
the vindication of her rights and her honor in the present peril- 
ous crisis of the country, I desire to express to you, in the name 
and behalf of her people, the sentiments of esteem and admira- 
tion which they in common with the whole Southern ])eople 
entertain for the character and fame of this ancient and re- 
nowned commonwealth. 

" Born under the same confederated government with your- 
selves, and participating in the common inheritance of consti- 
tutional liberty, in the achievement of which your ancestors 
played so distinguished a part, we take as much of pride and 
pleasure as you, her native sons, in the great achievements and 
still greater sacrifices which you have made in the cause of the 
common government, which has in the past united them to you ; 
and nothing which concerns your honor and dignity in the fu- 
ture can fail to enlist our deepest sympathies. In recurring to 
our past history we recognize the State of Virginia in the first 
great struggle for independence ; foremost not only in the vindi- 
cation of her own rights, but in the assertion and defence of the 
endangered liberties of her sister colonies ; and by the elo- 
quence of her orators and statesmen, as well as by the courage 
of her people, arousing the whole American people in resistance 
to British aggression. And when the common cause had been 
crowned with victory under her great warrior statesman, we 
recognize her also as the leader in that great work by which the 
emancipated colonies were united under a written constitution, 
which for the greater part of a century has been the source of 
unexampled progress in all that constitutes the greatness and 
happiness of nations ; nor do we forget that that progress has 
been due in a pre-eminent degree to the munificent generosity 
of Virginia in donating as a free gift to her country that vast 
territory north-west of the Ohio Paver which her arms alone 
1 ad conquered, and which now constitutes the seat of empire, 
and, alas, too, the seat of that irresistible power which now 



432 BENCH AND BAR OF MISSISSIPPI. 

erects its haughty crest in defiance and hostihtj, and threatens 
the destruction of the honor and the prosperity of this great 
State. 

" I desire also to say to you, gentlemen, that in being com- 
pelled to sever our connection with the Government which has 
hitherto united us, the hope which lies nearest to our hearts is 
that, at no distant day, we may be again joined in another 
Union, which shall spring into life under more favorable omens 
and with happier auspices than accompanied that which has 
passed away ; and if, in tlie uncertain future which lies before us, 
that hope shall be destined to disappointment, it will be the 
source of enduring sorrow and regret to us that we can no more 
hail the glorious soil of Virginia as a part of our common coun- 
try, nor her brave and generous people as our fellow-citizens. 

" Fully participating in these sentiments, it is with pride and 
pleasure that I accepted the commission of my State for the 
purpose I have indicated. Though when I consider the gravity 
of the occasion, the high interests which are involved, and the 
influence which your deliberations are to have upon the des- 
tinies of present and future generations, I confess my regret that 
the cause on which I am come has not been iutrusted to abler 
and worthier hands. 

' ' In setting forth to you, gentlemen, the action of my State, 
and the causes which induced it, I shall be compelled to speak 
in terms of condemnation of a large portion of what has liither- 
to been our common country ; but in doing so I wish to be 
understood tis excepting from whatever terms of censure I may 
employ that large body of patriotic and conservative men of 
the northern section who have, in all our struggles, manfully 
defended the constitutional rights of our section. For them the 
people of my State have no cause of complaint, and whatever 
the future may bring forth, we shall ever remember their efforts 
in behalf of the Constitution and Union, as we received them 
from their ancestors and ours, with admiration and gratitude. 
Our grievances are not from them, but from the dominant fac- 
tion of the North which has trampled them under foot and now 
strikes at us from the elevation it has obtained upon the pros- 
trate bodies of our friends. 



FULTON ANDERSON. 433 

" I propose, gentlemen, in discharge of my mission to you, 
])riefly to invite your attention to a review of the events which 
liave transpired in Mississippi since the fatal day wlien that sec- 
tional Northern party triumphed over the Constitution and Union 
at the recent election, and afterwards to the causes which have 
induced the action of my State. 

" On the 29th of November last the Legislature of Mississippi, 
by an unanimous vote, called a convention of her people, to take 
into consideration the existing relations between the Federal 
Government and herself, and to take such measures for the vin- 
dication of her sovereignty and the protection of her institutions 
as should appear to be demanded. At the same time a pre- 
amble setting forth the grievances of the Southern people, 
and a resolution, declaring that the secession of every 
aggrieved State was the proper remedy, was adopted by a vote 
almost amounting to unanimity. The last clauses of the pream- 
ble and resolution are as follows : 

" ' Whereas, They (the people of the non-slaveholding States) 
have elected a majority of electors for President and Vice-Pres- 
ident, on the ground that there exists an irreconcilable conflict 
.between the two sections of the confederacy, in reference to 
their respective systems of labor, and, in pursuance of their 
hostility to ns and our institutions, have thus declared to the 
civilized world that the powers of the Government are to be 
used for the dishonor and overthrow of the southern section 
of this great confederacy. Therefore, be it 

" ' I/esolved, By the Legislature of the State of Mississippi, 
that, in the opinion of those who constitute said Legislature, the 
secession of each aggrieved State is the proper remedy for their 

injuries. ' 

"On the day fixed for the meeting of the convention, that 
body convened in Jackson, and on the 9th of January, 18(51, 
proceeded to the adoption of an ordinance of secession from the 
Federal Union, by which the State of Mississippi withdrew from 
i\\e Federal Government the powers theretofore confided to it, 
and assumed an independent position among the powers of the 
earth, determined thenceforth to hold the people of the non- 
slaveholding section enemies in war, and in peace friends. But 



434 BENCH AND BAPw OF MISSISSIPPI. 

at the same time, and by tlie same ordinance, it was j^rovided 
' tliat the State of Mississippi hereby gives, her consent to form 
a Federal Union with such of the States as may have seceded, or 
may secede, from the Union of tlie United States of America, 
ujDon the basis of the present Constitution of the United States.' 

" This action of the Convention of Mississippi, gentlemen, 
was the inevitable result of the position which she, with other 
slaveholding States, had already taken, in view of the antici- 
pated result of the recent Presidential election, and must have 
been foreseen by every intelligent observer of the progress of 
events. 

" As early as the 10th of February, 1860, her Legislature 
had, with the general approbation of her j^eople, adopted the 
following resolution : 

" ' Resolved, That the election of a President of the United 
States by the votes of one section of the Union only, on the 
ground that there exists an irrepressible conflict between the two 
sections in reference to their res^^ective systems of labor, and with 
an avowed purpose of hostility to the institution of slavery, as it 
exists in the Southern States, and as recognized in the compact 
of the Union, would so threaten a destruction of the ends for 
which the Constitution was formed as to justify the slaveholding 
States in taking counsel together for their separate protection 
and safety. ' 

" Thus was the ground taken, not only by Mississippi, but by 
other slaveholding States, in view of the then threatened pur- 
pose of a party founded upon the idea of unrelenting and eter- 
nal hostility to the institution of slavery, to take possession of 
the Government and use it to our destruction. It cannot, there- 
fore, be pretended that the Northern people did not have ample 
warning of the disastrous and fatid consequences that would fol- 
low the success of that party in the election ; and imjjartial his- 
tory will emblazon it to future generations, that it was their 
folly, their recklessness, and their ambition, not ours, which 
shattered into pieces this great confederated Government, and 
destroyed this great temple of constitutional liberty which their 
ancestors and ours erected, in the hope that their descendants 
might together worship beneath its roof as long as tin)e would last. 



FULTON ANDERSON. 435 

" But, in defiance of the warning thus given, and of the evi- 
dences accumulated from a thousand otlier sources, that the 
Southern people would never suhnn't to the degradation implied 
in the result of such an election, that sectional party, bounded 
by a geographical line which excluded it from the possibility of 
obtaining a single electoral vote in Southern States, avowing 
for its sentiment implacable hatred to us, and for its policy the 
destruction of our institutions, appealing to ISorthern prejudice. 
Northern passions, Northern ambition, and Northern hatred of 
us, for success, and thus practically disfranchisiug the whole 
body of the Southern people, proceeded to the nomination of a 
candidate for the Presidency, who, though not the most con- 
spicuous personage in its ranks, was yet the truest representa- 
tive of its destructive principles. 

'' The steps by which it proposes to effect its purposes — the 
ultimate extinction of slavery and the degradation of the South- 
ern people — are too familiar to require more than a passing allu- 
sion from me. 

"• Under the false pretence of restoring the Government to the 
original principles of its founders, but in defiance and contempt 
of those principles, it avowed its purpose to take possession of 
every department of power — executive, legislative, and judicial 
— to employ them in hostility to our institutions. By a corrupt 
exercise of the power of appointment to office it proposed to 
jDcrvert the judicial power from its true end and purpose — that 
of defending and preserving the Constitution — to be the willing 
instrument of its purposes of wrong and oppression. In the 
mean time it proposed to disregard the decisions of tliat august 
tribunal, and, by the exertion of barefaced power, to exclude 
slavery from the public territory, the common prcjperty of all 
the States, and to abolish the internal slave trade between the 
States- acknowledging the legality of that institution. 

" It proposed, further, to abolish slavery in the District of 
Columbia, and in all places within the territory of the several 
States, subject under the Constitution to the jurisdiction of Con- 
gress, and to refuse hereafter, under all circumstances, admission 
into the Union of any State with a constitution recognizing the 
institution of slavery. 



436 BENCH AND BAR OF MISSISSIPPI. 

" Having thus placed tlie institution of slavery, upon wliich 
rests not onlj the whole wealth of the Southern people, but 
their very social and political existence, under the condemnation 
of a government established for the common benefit, it pro- 
posed in the future to encourage ininiigralTon into the public 
territory by giving the public lands to immigrant settlers, so as, 
Avithin a brief time, to bring into the Union free States enough 
to enable it to abolish slavery within the States themselves. 

' * I have but stated generally the outline and the general pro- 
gramme of the party to which I allude, without entering into 
particular details or endeavoring to specify the various forms of 
attack which have been devised and suggested by the leaders of 
that party upon our institutions. 

" That this general statement of its purpose is a truthful one 
no intelligent observer of events will for a moment deny ; but 
the .general view and purpose of the party has been sufficiently 
developed by the President-elect. 

"'It is my opinion,' says Mr. Lincoln, 'that the slavery 
agitation will not cease until a crisis shall have been reached and 
passed. A house divided against itself cannot stand. I believe 
this Government cannot endure jDcrmanently half slave and half 
free. 1 do not expect the house to fall, but I expect it to cease 
to be divided. It will become all one thing or another. Either 
the opponents of slavery will arrest its further spread and place 
it where the public mind shall rest in the belief that it is in the 
course of ultimate extinction, or its advocates will push it for- 
ward until it shall become alike lawful in all the States, old as 
well as new, North as well as South.' 

" The party thus organized on the principle of hostility to 
our fundamental institutions, and upon the avowed policy of 
their destruction, with a candidate thas representing that prin- 
ciple and policy, has succeeded in the Presidential election, by 
obtaining a large majority of the votes of the people of the 
non-slaveholding States, and on the 4th of March next would, 
unless prevented, have taken possession of the power and pat- 
ronage of our common Government, to wield tliein to our 
destruction. In contemptuous disregard of the principle on 
which that Government was founded, and received our assent, 



FULTOiq ANDEESON". 437 

to insure domestic tranquillity, promote the general welfare, and 
within the hmit of its constitutional power to exercise a foster- 
ing and paternal care over every interest of every section, it 
was to become our foe and our oppressor, and never to pause in 
its career of hostility and oppression until our dearest rights, as 
well as our honor, were crushed beneath its iron heel. 

" We, the descendants of the leaders of that illustrious race of 
men who achieved our independence and established our insti- 
tutions, were to become a degraded and a subject class under 
that Government which our fathers created to secure the 
equality of all the States — to bend our necks to the yoke which a 
false fanaticism had prepared for them, to hold our rights and 
our property at the sufferance of our foes, and to accept what- 
ever they might choose to leave as a free gift at the hands of 
an irrepressible power, and not as the measure of our constitu- 
tional rights. 

" All this, gentlemen, we were expected to submit to, under 
the fond illusion that at some future day, when our enemies had 
us in their power, they would relent in their hostility; that fanati- 
cism would pause in its career without having accomplished its 
purpose ; that the spirit of oppression would be exorcised, and in 
the hour of its triumph would drop its weapons from its hands 
and cease to wound its victim. We were expected, in the lan- 
guage of your own inspired orator, to ' indulge in the fond illu- 
sions of hope, to shut our eyes to the painful truth, and listen 
to the song of that siren until it transformed us into beasts. ' 

" But we in the State of Mississippi are no longer under that 
illusion. Hope has died in our hearts. It received its death- 
blow at the fatal ballot-box in November last, and the song of 
the siren no longer sounds in our ears. We has^e thought long 
and maturely upon this subject, and we have made up our 
minds as to the course we should adopt. We ask no compro- 
mise, and want none. We know that we sliould not get it if we 
were base enough to desire it, and we have made the irrevoca- 
ble resolve to take our interests into our own keeping. 

" I have already said that twelve months since the State of 
Mississippi, in connection with other slaveholding States, had 
taken a position in anticipation of the result of the recent Presi- 
28 



438 BEI^CH AND BAR OF MISSISSIPPI. 

dential election, from whicli they could not recede if they were 
base enough to desire it. I shall be jiardoned by you, I trust, 
for adding that an event of then recent occurrence, which 
deeply concerned the honor and dignity of Virginia, exercised 
a controlling influence in consolidating the Southern mind on 
this subject. When the exasperation was at the highest, whicli 
had been caused by the long and weary struggle which the 
Southern people had been compelled to make in defence of tlieir 
institutions, the daring outrage on your soil to which I allude 
was perpetrated. 

" This State, relying on the faith of constitational obligations 
and of those friendly relations which they were created to 
uphold and maintain, unconscious herself of any sentiment less 
noble than that of unwavering loyalty to her constitutional 
obligations, and therefore wholly unsuspicious of any treason- 
able design against her own peace and welfare, was, in a moment 
of fancied repose, in a time of profound peace, to her own 
amazement and that of the whole Southern people, made the 
scene of a foray by a band of conspirators and traitors from the 
Northern States, whose pur230se was to light up the fires of a 
servile insurrection, and to give your dwellings to the torch of 
the incendiary and your wives and children to the knives of 
assassins. The disgraceful attempt, it is true, ended in igno- 
minious failure. True that your slaves proved loyal, and by a 
prompt execution of your laws you vindicated your dignity and 
exacted from the wi"etched criminals the just forfeiture of their 
lives. But the event had, nevertheless, a terrible significance 
in the minds of the Southern people. It was justly considered 
as the necessary and logical result of the principles boldly and 
recklessly avowed by the sectional party which was then grasp- 
ing at the reins of government, and which is now about to be 
inaugurated into power. 

' ' Let it not be supposed that I refer to this disgraceful event 
with a desire to stir up a spirit of hostility or revenge, or to re- 
awaken those sentiments of just indignation which the fact is so 
well calculated to excite. I refer to it as a necessary and legiti- 
mate result of the iiTepressible conflict which has been pro- 
claimed, of which the President-elect gave a true exposition 



FULTON ANDERSON. 439 

wlien he said, ' Tliere is a judgment and a conscience at tlie 
Nortli against slavery which mnst find an outlet either through 
the peaceful channel of the hallot-box or in the multiplication 
of John Brown raids.' I refer to it as a warning to the people 
of the Southern States, and to you, the people of Virginia, of 
what they and you are to expect in the future when that party, 
whose principles thus give encouragement, aid, and comfort, to 
felons and traitors, shall have firmly established its dominion 
over you. 

" These are some of the causes, gentlemen, which have at 
last convinced the people of Mississippi that the hour has arrived 
when, if the South would maintain her honor, she must take 
her own destiny into her o\vn hands ; but let it not 1)e supi)osed 
that they have not always felt a strong attachment to the Union 
of the Constitution, provided that instrument could be admin- 
istered in the spirit in which it was created. That form of gov- 
ernment, on the contrary, is dear to our hearts, and its necessity 
to them and their posterity has received the sanction of their 
judgment. Loving it not wisely but too well, they have clung 
to it long after its obligations were abandoned by those who 
were the chief recipients of its benefits, under the fond illusion 
that a returning sense of justice and a restoration of fraternal 
relations formerly existing would secure to them their rights. 
They long and vainly hoped that the time would again return 
'when each and every section of the confederacy would recog- 
nize the rights and interest of all, and that we might in harmony 
with each other have continued to rejoice over what had been 
achieved of glory and prosperity in the past, and to look for- 
ward with united hope to the bright and glorious prosjiect which 
an observance of the principles of the Constitution promised in 
the future. But, alas, how has that hope been disappointed ; 
how has that illusion been dispelled ! 

" Could we think that the crisis which is now upon us was 
but a temporary ebullition of temper in one section of the 
country which would in a brief time subside, we might even yet 
believe that all was not lost, and that we nn'ght yet rest securely 
under the shadow of the Constitution. But the stem truth of 
history, if we accept its teachings, forbids us such reflections. 



J 



440 BENCH AND BAE OF MISSISSIPPI. 

It is not to be denied that the sentiment of hatred to our insti- 
tutions in the northern section of the confederacy is the slow 
and mature growth of many years of false teaching, and that as 
we have receded farther and farther from the earlier and purer 
days of the Republic, and from the memory of associated toils 
and perils in the common cause which once united us, that senti- 
ment of hatred has been fanned from a small spark into a 
mighty conflagration, whose inextinguishable and devourilig 
flames are reducing our empire into ashes. 

" Ere yet that generation which achieved our liberty had 
passed entirely from the scene of action it manifested itself in 
the Missouri controversy. Then were heard the first sounds of 
that fatal 'Strife which has raged, with occasional intermissions, 
down to this hour. And so ominous was it of future disaster, 
even in its origin, that it filled even the sedate soul of Mr. Jeffer- 
son with alarm ; he did not hesitate to pronounce it, even then, 
as the death-knell of the Union, and in mournful and memorable 
words to congratulate himself that he should not survive to wit- 
ness the calamities he predicted. Said he : 

" ' This momentous question, like a fire-bell in the night, 
awakened and filled me with terror. I considered it at once the 
death-knell of the Union. It is hushed, indeed, for the pres- 
ent ; but that is only a reprieve, not a final sentence. A geo- 
graphical line, coinciding with a marked principle, moral and po- 
litical, once concurred in and held up to the j^assions of men, 
will never be obliterated, and every new irritation will mark it 
deeper, until it will kindle such mutual and mortal hatred as to 
render separation preferable to eternal discord. 

" ' I regret that I am now to die in the belief that the useless 
sacrifice of themselves, by the generation of 1776, to acquire 
self-government and happiness for their country, is to be thrown 
away by the unwise and unworthy passions of their sons, 
and that my only consolation is to be that I live not to weep 
over it.' 

" But so far were the Northern people from being warned by 
these sad, prophetic words, that at each renewal of the struggle 
the sentiment of hostility has acquired additional strength and 
intensity. The passions enlisted in it have become more bitter. 



FULTON ANDERSON. 441 

the disregard of constitutional obligations more marked, and the 
purjwse to destroy our institutions more fixed and definite. 

" An infidel fanaticism, crying out for a higher law than that 
of the Constitution and a holier Bible than that of the Christian 
has been enlisted in the strife, and in every form in which the 
opinions of a people can be fixed and their sentiments perverted. 
In the school-room, the pulpit, on the rostrum, in the lecture- 
room, and in the halls of legislation, hatred and contempt of us 
and our institutions, and of the Constitution which protects 
them, have been inculcated upon the present generation of 
Northern people. Above all, they have been taught to believe 
that we are a race inferior to them in morality and civilization, 
and that they are engaged in a holy crusade for our benefit in 
seeking the destruction of that institution which they consider 
the chief impediment to our advance, but which we, relying on 
sacred and profane history for our belief in its morality, believe 
lies at the v^ery foundation of our social and political fabric, and 
constitutes their surest support. 

" This, gentlemen, is indeed an irrepressible conflict, which 
we cannot shrink from if we would ; and though the President- 
elect may congratulate himself that the crisis is at hand which 
he predicted, we, if we are true to ourselves, will make it fruit- 
ful of good by ending forever the fatal struggle, and placing 
our institutions beyond the reach of further hostility. 

" I know not what may be your views of this subject, nor 
what your purpose in this crisis ; but I have already told you 
what the people of Mississippi have resolved on, and to that 
determination, you may rely n\xm it, they will adhere through 
every extremity of prosperous or adverse fortune. They, like 
you, are the descendants of a revolutionary race, which for far 
less cause raised the banner of resistance against a far mightier 
power, and never lowered it until that victory which the god of 
battles ffives to brave men in a iust cause had crowned their 
efforts and established their independence ; and they have, like 
them, decided that the time has arrived to trust for the safety of 
their honor and rights only to their own strong arms and stout 
hearts rather than submit to placing those priceless blessings in 
the keeping of their inveterate foes. 



U2 BENCH A]^D BAR OF MISSISSIPPI. 

" I shall enter into no discnssion of the right of secession, \ 
whether it be peaceful and constitutional, or violent and revolu- ^ 
tionary. If decided at all, that question must in the nature of 
things be decided first by those who would force us back into a 
union with them, which we have repudiated, and when they 
shall have made up their minds on that subject, it will remain 
for us to join the issue and accept the consequences, be they 
peaceful or bloody. We shall do all in our power to avoid a 
hostile collision with those who were once our l)rothers, though 
now divided from us by an impassable gulf ; we wish them no 
harm, and could our prayers avail them we would freely offer 
them, that in their future destiny they may have that prosperity, 
liberty, and peace which we intend to seek for ourselves under 
a new organization. All good men, too, will pray that that 
Providence which presides over the destinies of nations and 
shapes their ends, rough-hew them as they will, will so ordain 
that the friends of libert}'^ throughout the world may not have 
cause to mourn over the folly and madness and wickedness of an 
effort by arms on this continent to subject a whole people, 
united in the vindication of their rights, and resolved to die in 
their defence. 

" But if it must be so, and we are compelled to take up 
arms, we trust we shall know how to bear ourselves as freemen 
engaged in a struggle for their dearest rights. We have 
learned the lesson how to do so from the history of your own 
noble commonwealth, and we will attempt, at least, to profit 
by the glorious example. 

" The conviction of the justice of their cause will be a tower 
of strength in the hour of battle, and iiisjjire the hearts of the 
Southern people like the sounds of that divine music which, in 
the words of the great poet, 

" ' ... cheered the hearts of heroes old, 
Arming to battle ; and instead of rage, 
Deliberate valor breathed firm and unmoved 
By dread of death to fight or foul retreat.' 

"And when that hour comes, we know, too, where Virginia 
will stand. Her banner will fioat proudly ' over the perilous 



FULTON ANDERSON. 443 

edge of battle,' wherever it rages, and the blood of her sons 
will enrich every field where Southern men strike for their 
rights and their honors. 

" Having thus stated the action of my State, and the causes 
which induced it, I should probably best consult the proprieties 
of the occasion by adding nothing to what 1 have said. I 
trust, however, I shall be pardoned for offering one or two sug- 
gestions for your consideration. The fundamental idea which 
has influenced the action of the seceding States is tlie demon- 
strated necessity that the Southern people should take their in- 
terest and their honor into their own keeping, and thus rescue 
them from the power of an avowedly hostile government. It is 
not that they are opposed to a union of the confederated 
States. Such a form of government is not only dear to their 
hearts, but its value and necessity to them and their posterity 
receives the recognition and approval of their judgment. It is 
no fault of theirs tliat the Union, as it recently existed, has 
ceased to be practicable or desirable. The Southern people may 
well recur with pride to the history of their connection with 
that Government. Well may they ask when have they, as States 
or individuals, proved faithless to the obligations it imposed ? 
In what point have they fallen short of the full measure of duty 
and comity to their sister States ? What indulgence have they 
not shown to the insulting prejudices and unreasoning fanati- 
cism of the other section ? What sacrifices of blood and treasure 
have they not made in the common cause, and what efforts to 
bring back the harmony which, in the language of one of her 
most eloquent sons, reigned in those days when Massachusetts 
summoned Washington to lead the armies of New England, and 
when Virginia and Carolina sent supplies of corn and rice to 
their famishing brethren in Boston ? 

" But such a form of government being demonstrated to be 
impracticable with the Northern people, all that is left us is the 
creation of a great and powerful Southern Union, composed of 
States inhabited by homogeneous populations, and having a com- 
mon interest, common sympathies, common hopes, and a com- 
mon destiny. 

' ' This is the inevitable destiny of the Southern people, and this 
destiny Yirginia holds in her hands. By uniting herself to her 



444: .BENCH AND BAR OF MISSISSIPPI. 

sisters of the South who are ah*eadj in the field, she will make 
that a peaceful revolution wliich may otherwise be violent and 
bloody. At the sound of her trumpet in the ranks of the South- 
em States, 'grim-visaged war will smooth his wrinkled front,' 
peace and prosperity will again smile upon the country, and we 
shall hear no more threats of coercion against sovereign States 
asserting their independence. The Southern people, under 
your lead, will again be united, and liberty, prosperity, and 
power, in happy union, will take up their abode in the great 
Southern Republic, to which we may safely intrust our desti- 
nies. These are the noble gifts which Virginia can again confer 
on the country, by i>ronipt and decided action at the present. 

" In conclusion, gentlemen, let me renew to you the invitation 
of my State and people to unite and co-operate with your 
Southern sisters who are already in the field in defence of their 
rights. We invite you to come out from the house of our ene- 
mies, and take a proud position in that of your friends and kin- 
dred. Come, and be received as an older brother, whose counsels 
will guide our action and whose leadership we will willingly 
follow. Come, and give us the aid of your advice in counsel, 
and your arm in battle, and be assured that when you do come, 
as we know you will do at no distant day, the signal of your 
move will send a thrill of joy vibrating through every Southern 
heart from the Rio Grande to the Atlantic, and a shout of joy- 
ous congratulation will go up wliich will shake the continent 
from its centre to its circumference." 

After perusing this address the reader will not thank the his- 
torian of this work for an expression of his opinion of Mr. An- 
derson's oratory or patriotism. Sutlice it to say, that his elocu- 
tion was cultivated and pleasing, and his manners as an orator 
graceful and engaging. But, like all of our leading men and 
eminent patriots, who had thrown their minds, their hearts, and 
their hopes into the issue of the great struggle, the result was to 
Mr. Anderson overwhelming and irremediable. The gloom that 
hung over his country, the misfortunes that bore down his peo- 
ple, seemed to add the weight of age to his meridian years, and 
he passed from the scene amid the darkness that thickens on the 
brow of approaching dawn. He died at his residence, in Jack- 
son, on the 27th of December, 1ST4. 



GEORGE L. POTTER. 445 



GEORGE L. POTTER. 

George Lemuel Potter, long a distinguislied lawyer at tlie bar 
of Mississippi, was born in the city of New Haven, Connecticut, 
on the 10th of November, 1812. His early advantages were lib- 
eral, and after a thorough preparation in the best schools of his 
native city he was sent to Yale College, from which he was grad- 
uated in the twenty-first year of his age. He then studied law, 
and, having obtained his license, emigrated to Mississippi in 
1835, and located in the city of Natchez, where he pursued his 
profession until the year 1840, when he removed to the town of 
Clinton, in Hinds County, and there formed a copartnership with 
Mr. H. E. Yan Winkle. He remained in Clinton about three 
years, and then removed to Jackson, where he soon took rank 
among the first lawyers who practised at the l)ar of the High 
Court. For thirty-five years there was scarcely a lawyer in 
the State who appeared more frequently before that bar, and 
the reported decisions during that time abound with arguments 
made by him upon the most important questions, and which dis- 
play a profoundness of research, powers of analysis, logical acu- 
men, and a brilliancy of success that would perpetuate the fame 
of any jurist at any bar and in any age. 

His intellect was subtle, penetrating, and profound, and was 
thoroughly trained and disciplined by severe, constant, and in- 
tense exercise, while his capacity for mental lahor seemed to be 
of an exhaustless measure. He rarely spent an idle hour, but 
was ever busy either in the investigation of some abstruse legal 
question which was involved in his practice, or presented to his 
mind by his powers of analogy ; or he was actively engaged in 
the promotion of some scheme to advance the welfare of the 
community. 

The professional acquirements of Mr. Potter were of the 
highest order, and he was a lawyer of great learning and ability : 
the qualities of his mind were singularly adapted to the em- 
bracement of those tenuous and recondite features of the profes- 



446 BENCH AND BAE OF MISSISSIPPI. 

sion wliicli constitute the test of superiority and are required to 
fill the measure of eminence. His intellect spread itself like a 
" diffusive touch" throughout every part of a subject, gathered 
up the ingredients of truth, and constracted a chain between 
cause and effect of which his perception traversed and inspected 
every link. While his distinctions were, sometimes, apparently 
without a characterizing difference, and his theories too refined 
and attenuated for ordinary vision, they were found when 
assaulted to be cables of reason which moored his positions to 
fundamental principles and unquestionable truths. 

His mind was peculiarly practical. He had no taste for the 
specious and ornamental, and rarely indulged in rhetorical fig- 
ures or flights of in)agination. He gave no thought to his man- 
ner of oratory, and no attention to his style of elocution ; but 
with his mind centred upon the matter of his discourse and 
the pith of his argument, his eloquence gushed, fresh and pure, 
from the fountains of conviction, and his logic roamed free and 
untrammelled through the field of thought, guided only by the 
light of perspicuity and the goal of truth. 

His features and habits partook of the character of his mind. 
The former were clear-cut and strikingly prominent, while his 
homely attire and unkempt appearance gave an enigmatical air 
to the man, which, while in keeping with his meekness and sim- 
plicity, presented an eccentric contrast with the brilliancy and 
intellectual fljishes of his conversation. 

But as the source of these outward manifestations of his great- 
ness, he erected a pure structure of the inner man. He pos- 
sessed a perfect mastery over himself, maintained a severe moral 
regimen, and cultivated a system of strict self-abnegation, to 
which his actions conformed more and more as he advanced in 
years. So striking were these features that they impressed 
themselves upon the attention of all who came within the reach 
of his influence, and caused them to contemplate more seriously 
the problem of life and the proper way in which the great bat- 
tle should be fought. 

In the prime of life he had amassed a store of resources, and 
acquired a professional reputation which gave him the command 
of fortune ; but the acquisition of wealth did not enter the cur- 



GEOKGE L. POTTER. 447 

riculiim of his aims, and formed no part of his ambition. He 
performed a large amount of eliaritable and unrecompensed 
labor, and seemed to be satisfied with a bare sufficiency of means 
for the support of his family.' He made no effort to gain popu- 
larity, repelled the overtures of official distinction, and gathered 
scantily from the riches which an ample professional patronage 
placed within his reach. 

But the curious gaze which such an exceptional character 
would have attracted was diverted by his great talents and at- 
tainments, and his eccentricities were lost in the admiration of 
his exalted virtues. To one not familiar with these the charac- 
ter of Mr. Potter would have been, indeed, an unsolvable 
enigma. 

But the strangest thing connected with the character of this 
remarkable man was that his great fondness for severe and in- 
tense intellectual labor, his rigid abstinence, and apparent de- 
ficiency of taste for the ordinary pleasures and gratifications of 
life, were by no means associated with solitary habits ; nor did 

he 

" All the livelong clay 

Consume in meditation deep, recluse 
From human converse." 

On the contrary, he sought the society of men, delighted in ani- 
mated conversation, and cherished the warmest friendships and 
the keenest sympathies. He was uniformly calm and cheerful, 
and maintained on all occasions an imperturbable equanimity. 
His life was blameless, and abounded in good deeds. He 
labored earnestly for the pubhc weal, with no expectation or de- 
sire of reward. His charity flowed freely, and no labor was too 
severe for him in the performance of a kindly act or in gratify- 
ing the wishes of a friend. 

Mr. Justice Chalmers, in his response to the presentation of 
the tribute of the bar of the Supreme Court to the memory of 
Mr. Potter, related some striking instances of this character. 
He said : 

" Twenty-one years ago, while a law student in this city in 
the office of the Attorney-General of the State, I was directed 
by my preceptor to prepare a brief in the case of Mask vs. 



448 BEJS'CH AND BAR OF MISSISSIPPI. 

The State, reported in 32d Miss. E. Pursuing mj investi- 
gations for this purpose in the State Library, I discovered that 
one of tlie questions involved was of iirst impression in tliis 
court. Mr. Potter, already in the meridian of his fame as a law- 
yer, happened to be in the library, and I took the liberty of call- 
ing his attention to tlie question. I shall never forget ray sur- 
prise at the cheerfulness with which he abandoned his own work 
and the kindness with which he pointed out to me the conflicting 
decisions in other States, and explained the reasons upon which 
they were based. It remains in my memory as my first distinct 
recollection of him, and my last is of a similar character. A few 
days before his death I incidentally mentioned to him in the 
same library a question of some difficulty which I had under 
consideration as a member of this court, and- 1 was astonished 
the next day by his coming to me with a sheet of paper covered 
with citations of authorities upon the point. Trivial as these 
circumstances are, they illustrate that kindness of heart, that 
abnegation of self, that earnest sympathy for the troubles of 
others, which we all knew, and wliich, no doubt, are more pre- 
cious at that Supreme Bar before which his immortal spirit stands 
to-day than all the wealth of learning and of genius which he so 
often displayed before this. 

" It has been said that the bar instructs the bench no less than 
it is instructed by it. Never did we realize this fact more sen- 
sibly than in listening to the arguments or perusing the briefs 
of our deceased brother. Nothing that learning, or labor, or 
ingenuity could suggest was left unsaid ; and if sometimes the 
very acuteness and subtlety of his intellect misled him, it was 
as difficult to detect the fallacy of his reasoning as it was to re- 
sist the power of his logic." 

The death of Mr. Potter, which occurred on the 6th of Feb- 
ruary, was shockingly sudden and unexpected. He had left his 
residence in Jackson on the evening before to attend the chan- 
cery court of a neighboring county, in which he was engaged in 
an important case. He had finished his argument and seated 
himself at a table in the bar ; he was engaged in writing, but be- 
fore the document Avas finished he was suddenly stricken with 
apoplexy, and died immediately. It is somewhat a remarkable 



GEOEGE L. POTTER. 449 

coincidence that the only law partner he ever had, Mr. Tan 
Winkle, met with the same sudden death, who also was seized 
with apoplexy wdn'le standing in the vestibnle of the Capitol, 
and, like Mr. Potter, died almost without a struggle. 

The life of Mr. Potter was a beautiful commentary upon 
the calm and peaceful assurances of Christianity, lie walked 
strictly in its paths, and plucked every joy of its promises. The 
last time his friends beheld him he was sitting in his accus- 
tomed pew, from wdiich he proceeded to the train that bore him 
to the scene of his death. 

The following beautiful tribute was paid to his memory by 
the bar of the Supreme Court, and which was accompanied by 
the usual resolutions : 

" Judge George Lemuel Potter, the great lawyer, the useful 
and public-spirited citizen, the humble and devout Christian, the 
devoted and unselfish friend, has been called suddenly from the 
scene of his earthly labor. It'is fit that his surviving brethren 
of the bar should pay this tribute to his memory, and testify 
their ap])i-eciation of his worth. 

" For more than thirty-five years he has practised at the bar 
of this court. The reports of its decisions contain many evi- 
dences of his ability as a lawyer. Those of us who have heard 
him at the bar can bear testimony that his great fame as a jurist 
was not undeserved. He was, indeed, one of the brightest lu- 
minaries of our profession, distinguished by his rare intellectual 
endow^ments and his vast legal acquirements. 

" Yet, learned and great as he was, there was nothing in his 
manner, nor in his intercourse with the bench and bar, which 
indicated that he was conscious of a superiority over others ; he 
was modest, gentle, and ever mindful of the rights and feelings 
of others. 

" He maintained his side in argumentation with the skill of 
a great dialectician supported by vast and varied learning. He 
enjoyed his victories at the bar with moderation, and submitted 
to defeat without complaint. His capacity for laljor was ex- 
.traordinary, and his industry almost without a parallel. 

" By the gentleness of his manners and the truthfulness and 
sincerity of his luiture he won the esteem and love of us all. 



450 BENCH AND BAR OF MISSISSIPPI. 

He was a sincere and devoted Christian, illustrating in his daily 
intercourse with his fellow-men the spirit of peace and love of 
liis Divine Master. He was frank and candid, without brusque- 
ness ; he was liberal in praise when commendation was due, yet 
was no flatterer ; he was foremost in every good work ; he was 
so full of kindness for his fellow-man, so ready and prompt to 
render any assistance in his power to whomsoever might ask or 
need it, that it may with truth be said that he passed the 
greater portion of his life in unrecompensed labor for others. 
Few men have deserved so well of the community in which they 
lived, and few, when death has called them hence, have been so 
mourned. His death is a great public loss, and it inflicts a 
deep wound on us, his surviving brethren." 



WILLIAM A. LAKE. 

William A. Lake, long a j^rominent member of the bar of 
Mississippi, was born in Dorchester County, Maryland, in the 
year 1808. His educational advantages were ample, and he was 
admitted to the bar at the age of twenty-one. Two years later 
he was elected to a seat in the Legislature of Maryland, and at 
the expiration of his term, in 183i, he removed to Mississippi 
and resumed the practice of law in the city of Vicksburg, at first 
in copartnership with Mr. William H. Hurst, and afterwards 
with Judge J. S. Yerger. He rose rapidly to distinction in his 
new home, and wrought his way to a merited position among 
the most eminent members of his profession. 

But while he was learned as a lawyer and successful as an ad- 
vocate, his varied accomplishments fitted him peculiarly for the 
position of a popular leader, and he was several times called to 
represent Warren County in the Legislature of the State, first 
in the lower House and then in the Senate. 

He possessed in an eminent degree the qualities that gain the 
confidence of the public and insure popularity with the people. 
He was an eloquent speaker, enthusiastic in his partyism, bold, 



WILLIAM A. LAKE. 451 

frank, and fearless in the avowal of his principles, yet eonrto- 
ous and gentle in his opposition. His character was a blended 
model of sensitiveness, honor, and magnanimity. His personal 
popularity was conseqnently great, and he was chosen in 1856 
to represent the Fourth Mississippi district in the Congress of 
the United States, in which his course was marked M'ith a tidel- 
ity that reflected credit upon himself, and with a dignity and 
ability that gave honor to his section and constituencv. In 
1861 he was a candidate for a seat in the Confederate Coni::ress, 
and in consequence of some personalities or misunderstand- 
ings, growing out of the heated canvass,'_he was challenged by 
his opponent, Chambers, and fell upon the field of honor. 

His death was greatly lamented, especially by the community 
in which he lived, and to which his useful talents and social vir- 
tues had endeared him to an extent equalled only by the pride 
which it felt in his genius. 

Mr. Lake was gifted with intellectual powers of a high order, 
but his eminence at the bar was not alone the result of superior 
talents : it was due in a great measure to his assiduity, his ca- 
pacity for labor, and his close attention to all the details of the 
profession. He omitted no test of patience, no tedium of in- 
vestigation, and no item of labor necessary to advance the cause 
of his clients or promote the attainment of their rights. 

His spirited sense of honor and unswerving integrity com- 
manded respect and inspired contidence ; his polished and ur- 
bane manners attracted the good- will of all who came in contact 
with him, while his cultured and refined oratory gave him a 
power of suasion which the sternest defiance could not wholly 
withstand. He was also an able and forcible logician, and, 
whether in the forum or the halls of legislation, proved himself 
an antagonist worthy of the keenest steel. 

His accomplishments were varied and versatile, and his per- 
sonal attributes were no less conspicuous for their excellence than 
his professional attainments. His impulses, though vehement, 
were kind and gentle, and his motives were pure and unselfish. 
In his family he was kind and patriarchal, and in all his inter- 
course with his fellow-men he was frank, noble, and scrupulous 
in the observance of all the forms of courtesy. 



452 BENCH AND BAR OF MISSISSIPPI. 

His public honors were indisputably deserved, honestly 
gained, and worthily worn ; and, as an eminent divine said of 
Alexander Hamilton, " He stood upon an eminence, and glory 
covered him ; from that height he has fallen — suddenly, forever 
fallen," Mr. Lake stood upon an eminence in Mississipj)i, and 
his glory was the respect, the honor, and the admiration in 
which he was held by his fellow-citizens. 

While he was quick and resolute in maintaining his own 
lion or and dignity, he was not revengeful, nor arrogant or over- 
bearing in his demeanor. On the night before his death he 
wrote to his wife, " My conscience approves my conduct in this 
matter, and however it may result, I feel that 1 shall not re- 
proach myself. I have many friends to whom I am devotedly 
attached ; and although I have some enemies, I have never in- 
tentionally harmed them." And he declared to a friend upon 
the field that it was neither his intention nor desire to kill his 
antagonist. But his magnanimity was no defence against the 
fatal missile. He fell, and the bar was deprived of one of its 
most distinguished members, society one of its brightest orna- 
ments, and the State of Mississippi one of its most patriotic and 
useful citizens. 




1>'^- 



JAMES PHELA]S\ 455 



JAMES PHELAN. 

The father of James Phelan was a native of Ireland, and was 
a descendant of one of the ancient families of that country. 
Being well educated, and possessed of an ample fortune, he was 
ambitious of filling a higher sphere than he could hope to enjov 
under the system of political exchision maintained against Cath- 
olics, at that time, in his native country, and in 1793 emigrated, 
to America. lie resided for many years in New York and New 
Jersey, and during that time was an officer of the First United 
States Bank in New York, the Bank of Manhattan, and subse- 
quently cashier of the Bank of New Brunswick in New Jer- 
sey. Having lost his property by an ill-advised land specula- 
tion in New Brunswick, he determined to seek the reparation 
of his fortune in the South, and removed to Huntsville, in Ala- 
bama, aboiit the time of the admission of that State into the 
Union. 

Here the subject of this sketch was born, on the 20th of No- 
vember, 1820. His father, actuated, perhaps, by notions of pri- 
mogeniture imbibed in his native country, bestowed all the means 
he could afford upon the classical education of his oldest son, 
while the subject of this sketch enjoyed but few educational ad- 
vantages ; and, when about the age of fourteen years, with that 
self-reliance and spirit of independence which characterized him 
through life, he sought employment as an apprentice to the 
printer's art, in the office of the Huntsville Democrat. But so 
briUiant was his genius, and so conspicuous were his native tal- 
ents, that he was soon enabled to exchange the stick for the 
quill, and his editorials attracted the attention of the leading 
men in the State. In consequence of his political acumen, and 
the incisiv^e vigor of his editorials, he was afterwards called by 
the unanimous voice of the party magnates to take charge of tlie 
editorial columns of The Hag of the Union, the central organ 
of the Democratic party, published at Tuscaloosa, the capital 
29 



456 BENCH AND BAE OF MISSISSIPPI. 

of the State. Througli the columns of this journal he exer- 
cised, for many years, a controlling influence in the politics of 
Alabama, and in 1843 was elected State Printer. 

In this double capacity his energy and business qualifications 
abetted the development of his talents, and having acquired a 
competency he determined to devote his future career to the 
law, and entered the office of his older brother, Judge John J). 
Phelan, at Marion, Alabama, where he soon prepared himself 
for the profession, and was admitted to the bar of the Supreme 
Court of his native State in 1846. He then returned to Ilunts- 
ville, where he began his professional career, and in 1847 mar- 
ried Miss Eliza Moore, of that place — a lady noted for her >ac- 
complishments, and afterwards for her conjugal devotion. 

In 1849 Mr. Phelan removed to Aberdeen, Mississippi, where 
he soon achieved a distinction of the first rank in his profession, 
and in 1854 formed a copartnership with John B. Sale. This 
firm was justly regarded as one of the ablest in the State, and 
the association continued until the outbreak of the civil M'ar. 

Possessed of an ardent temperament and an inherited hatred 
of oppression, he espoused the Southern cause with all the 
warmth and vigor of his nature. In every heated campaigri his 
voice had been heard in thrilling notes in defence of Democratic 
principles and in the advocacy of States 7'ig/its ^' and when the 
great issue, now fixed and defined, was arraigned before the tri- 
bunal of the sword, no one was more ready than he to place his 
life as an offering in the scale ; but his talents designated him 
for other duties than those of the field. In 1860 he was elected 
to the State Senate, and in the first organization of the Confed- 
erate Government was chosen one of the Senators of Mississijipi 
in the Confederate States Congress. He had never sought 
office, but, preferring the quiet of private life, had given to his 
profession that undivided allegiance which Lord Eldon said it 
demanded. But the vast importance and the great responsibil- 
ity which now attached to the counsels of the young nation, upon 
whose wisdom hung the mightiest issues that ever freighted the 
thoughts of men, opened to Mr. Phelan an illimitable field for 
his patriotic eilorts, and one to which his talents were peculiarly 
adapted. On this field he met men who had been long trained 



JAMES PHELAN. 457 

m the two Houses of tlie United States Congress, and others dis- 
tinguished at home for their learning and ability. lie was ar- 
rayed against men who had held the hrst rank as politicians and 
popular orators both in Congress and in the State governments, 
and one less dauntless might have shunned a controversy with 
men of such overwhelming reputation as Yancey, Clay, Barn- 
well, and Wigfall ; but Mr. Phelan at once took his jilace in 
the front rank, and his speeches exhibited a profundity of re- 
search and vigor in debate which have rarely been equalled liy 
the best-trained parliamentarians. He was devoted to truth, 
and the supremacy of law, as the best shield of liberty. It was 
not, therefore, with him to question whether he would fare well 
or ill in such contests, but whether the country would be bene- 
fited or injured by the measures which were under debate. In 
illustration of this, some extracts are appended to this sketch, 
from a speech he made in the Confederate States Senate in oppo- 
sition to an amendment proposing to repeal the section of the 
Judiciary Act which gave appellate jurisdiction to the Supreme 
Court in certain cases originating in the State courts. At this 
period there existed a great prejudice against the recognition of 
any power not subordinate to that of the State, and the amend- 
ment seemed about to pass without opposition when Mr. Phelan 
arose, the unexpected defender, of the gate, and presented him- 
self an untried but full-armed champion in the defence of 
what he believed to be a vital interest about to be crushed under 
popular error. 

After the close of Mr. Phelan's senatorial career he was ap- 
pointed judge of a military court, and continued to discharge, 
in an able manner, the duties of that station until the close of 
the war. In every position, whether as senator, judge, or citi- 
zen, he gave an earnest and unswerving support to the adminis- 
tration of Mr. Davis, justly considering that while carpiiig criti- 
cism might weaken the defence of the country, it could not 
possibly strengthen the arms which were upholding its l)anner. 
Between him and Mr. Davis existed a warm personal friendship 
and the freest interchange of opinion ; indeed, there was no 
man to whom the Confederate President more fully revealed liis 
purposes and motives. It is not supposable, however, that u 



458 BENCH AND BAE OF MISSISSIPPI. 

man of such marked characteristics as Mr. Phelan would uni- 
formly agree with any one on such complex questions as were 
involved in the war and the policy of the new government ; 
but whatever may have been the measures in regard to which 
he disagreed with Mr. Davis, discussion usually brought them 
into concurrence, and the trials of the long and wasting war left 
them only closer friends than before. 

Judge Phelan was always an advocate of the strongest meas- 
ures which would tend to increase the means of our defence. 
With him all the property and all the men of the Confederacy 
were due to the exigencies of the struggle, and in January, 
18G3, he introduced a bill in the Confederate States Senate 
providing for the impressment and appropriation to the public 
defence of all cotton within the Confederacy, which was re- 
ferred to a special committee, and was reported by it, after some 
amendments, with the recommendation that it should pass. 
The object of this measure was twofold — to prevent the cotton 
remaining on the plantations in exposed localities from falling 
into the hands of the enemy, and to form the basis for a foreign 
loan. The latter, however, could have been sufficiently estab- 
lislied, as it was, by voluntary subscriptions, and largely more 
was obtained in this way than could be carried to the seaports 
or run through the blockade. But Mr. Phelan conceived, no 
doubt, that the more of the staple the Government controlled 
the greater would be the weight of its credit, and stronger the 
inducement to foreigners to protest against the blockade. 

At the close of the war J iidge Phelan found himself impover- 
ished, and not even permitted to resume the jjractice of his pro- 
fession, which constituted his only means for the support of his 
children. Under these circumstances he went to Washington 
to ask at tlie seat of Govennnent for the removal of his disabili- 
ties, lie was no stranger to the President, and although there 
were others on a like errand who had been waiting for an audi- 
ence many days, Mr. Johnson, on receiving the card of Judge 
Phelan, directed that he should be shown in immediately, and in- 
quired of him the object of his visit. Judge Phelan carried with 
him no papers ; he went there to make no plea in abntement or re- 
cantation of his opinions, and therefore answered merely, " I 



JAMES PHELAN". 459 

liave come to get permission to work in order that I may sup- 
port my cliildren. ' ' To some remark of the President in regard 
to the conduct of the South, Judge Phelan promptly responded 
that he had followed his convictions of duty, and had no apohjgy 
to offer. President Johnson, to his honor, respected the man- 
hood of the answer, and influenced, perhaps, by the evident in- 
tegrity of the speaker, referred him to the Attorney- General, 
who was instructed to prepare the necessary papers which would 
enable the Judge to resume his professional labors. 

He returned to Aberdeen and revived his copartnership with 
Judge Sale, which was afterward joined by Colonel William F. 
Dowd ; but the ravages of war had left but a remnant of the 
wealth which formerly abounded in the country in which he 
had made his home, and seeking more encouraging prospects 
in the pursuit of his profession, he removed, in 1807, to Mem- 
phis, Tennessee, and became associated with Judges William L. 
Harris and Henry T. Ellet, both formerly of the High Court 
of Errors and Appeals of Mississippi. This firm was character- 
ized by transcendent ability, and enjoyed every prospect of a 
large patronage ; but was dissolved, on the death of Judge Har- 
ris, in 1868. Judge Phelan continued the practice of his profes- 
sion in Memphis with success and marked distinction to the time 
of his death, which occurred on the 17th of May, 1873. 

As a lawyer Judge Phelan was brilliant and profound. The 
faculties of his mind were quick, energetic, and grasping, and 
were always at his command. He had mastered every feature 
of the law, and his familiarity with the decisions of the courts 
loaded his vivid memory with an inexhaustible store of prece- 
dents, from which his genius was never at a loss to model an 
analogy. He was quick to perceive the substance and character 
of a proposition, and his powers of analysis penetrated readily 
the most complex questions of law and fact, and resolved tlic 
most abstruse features into clear and unquestionable principles ; 
and then, again, he would gather the scattered elements uf 
abstraction and bind them into a synthetical hinge, upon wliich 
conviction would pivot at his bidding. His argumentation was 
always logical and closely knit, and his presentation of his cases 
was clear, forcible, and convincing. His thoughts were em- 



460 BENCH AND BAK OF MISSISSIPPI. 

bodied with the interest of his clients, and he chmg to their 
causes with the ardor and fidelity of a zealot. 

As an orator Judge Phelan has had but few equals in the 
South. His command of language was remarkable, and his 
diction was chaste, engaging, and apt. His imagery and illus- 
tration were copious and brilliant ; indeed, so varied was his 
metaphor that, however often he might repeat his propositions, 
they presented themselves with new force, and in such new and 
startling colors as to obviate even the resemblance of redun- 
dancy. He was exceedingly poetical in his taste, M'as fond of 
the tender and sentimental, as well as the grand and sublime. 
The author met him but once, but he recalls from an indelible 
impression the beautiful application he made during that inter- 
view of Sterne's figure of the angel, the tear and the blot. Few 
men possessed in a higher degree than Judge Phelan the mingled 
character of the lion and the lamb. Fearless, and when excited 
fierce, he was generous, chivalrous, and gentle ; and though he 
usually wore a cold exterior, he w^as warm-hearted, and even 
tender to the helpless and unfortunate. Perhaps this trait will 
be better illustrated by the the two following incidents than by 
description. 

On one occasion, at Aberdeen, he saw a man of desperate 
character with a pistol levelled at another quite near to him, and 
with serious intention of killing the object of his anger. Judge 
Phelan had no animosity to the one and no friendship for the 
other ; notwithstanding, he sprang before the man with the 
pistol, and holding a knife near to his face, warned him if he 
pulled the trigger he too should die, thus saving the life of 
one who had no claim upon him, at the risk of his own. 

While residing in Memphis, and when time had whitened his 
hair but had not chilled the impulses of his heart, he visited a 
circus where he saw a little girl placed on a horse to leap over 
some poles or ropes as the horse ran beneath them. The child 
failed in the attempt, and fell ; the master of the ring replaced 
her upon the horse, and in a second attempt she again fell, and 
manifested the utmost dread and agitation while the master was 
preparing to force her to a third effort ; but while he was in the 
act of replacing her upon the horse Judge Phelan ordered him 



JAMES PHELAN. 461 

to desist. To this lie made a defiant reply, and declared that the 
child should perform the feat. Judge Phelan answered, " At 
your peril dare to put her up again,' ' and with such manifesta- 
tion that the master of the ring sent her away. 

Well has it been said that the truest are the gentlest. No 
braver, truer man than Judge Phelan walked the earth while 
he trod upon it, and the sod covers none more magnanimous 
and generous than he was. Just to his fellow-men, many of 
whom he had served and none of whom he had intentionally 
injured, with a deep love for all that is beautiful and with a 
devout reverence for his Creator, whom, without cant, he had 
devotedly worshipped, he met death like a Christian and philos- 
opher. 

Speech on the Judiciary Bill. 

Mr. Clay, of Alabama, having offered to amend the bill organizing the 
Supreme Court by repealing the 45th section of the Judiciary Act, passed 
by the Provisional Congress, giving affellate jurisdiction to the Supreme 
Court of the Confederate States, of cases originating in the State courts, 
arising under the Constitution, treaties, and laws of the Confederate States, 
etc., no Senator taking the floor, and the President having put the ques- 
tion for final action to the Senate, 

Mr. Phelan rose and said : 

" Mk. President : It might reasonably have been expected 
that those wdio advocate the repeal of an existing law would 
have presented us the argument demanding its expurgation from 
the statute-book. This, however, the friends of the pending 
amendment have declined. A consciousness of strength, doubt 
less, is the solution of their silence ; and unless this novel and 
menacing measure is to stalk unchallenged through the Senate, 
it must now be halted and assailed. In my opinion, the issue it 
presents involves questions and consequences of the most solemn 
import to the future peace and stability of our Government ; 
and I am amazed that, as a summer cloud, it awakens no won- 
der as it passes by. I think I perceive the sharp, quick scarce- 
seen gleam of the lightning flash, though all is hushed, to be 
followed by a peal of jarring thunder. I feel, as it were fa 11- 
inc upon my heart the herald rain-drop which foretells the 
mustering storm that will ultimately rock to ruins the ascending 



462 BENCH AND BAR OF MISSISSIPPI. 

temple of our Confederacy. Thus counselling with my own 
conscience, obeying the behests of my own judgment, and un- 
awed by the array of age and intellect which confronts me, in 
opposition, I dare not withhold my feeble voice from the con- 
demnation of a measure which, as I believe, will be hurtful to 
the harmony and disastrous to the perpetuation of our country. 

" Hurried to the floor, Mr. President, by the rapidity with 
which this measure was passing through the Senate, I am unable 
to produce a tithe of that documentary history which more 
ample time would have enabled me to obtain, corroborative and 
23ersuasive, if not absolutely conclusive, both of the constitu- 
tionality and expediency of the act proposed to be repealed. 

^' Let us first analyze the clause from which the power to 
pass this act is extracted. It is as follows : 

" ' The judicial power shall extend to all cases arising 
under this Constitution, the laws of the Confederate States, and 
treaties made, or which shall be made, under its authority,' etc. 

" Our language furnishes no words more absolute, nor can a 
sentence be framed more comprehensive. The word ' all ■ 
exhausts the idea of unity, entirety, and completeness. 

"The question then recurs. Are the cases specified in the 
45th section included within the catalogue of those enu- 
merated in the Constitution ? This is not denied. If so, then 
the exemption of such cases from the general grants when 
arising in State courts, must be specially shown from other 
clauses of the Constitution. It is alleged that the intention to 
limit the judicial power of the Confederate courts is apparent 
from the second clause of the 2d section of the 3d article, as 
follows : 

" ' In all cases affecting ambassadors, or other public ministers and con- 
suls, and those in which a State shall be a party, the Supreme Court shall 
have original jurisdiction. In all the other cases before mentioned the 
Supreme Court shall have appellate jurisdiction, both as to lav? and fact, 
with such exceptions and under such regulations as the Congress shall 
make. ' 

" What was the leading design of this clause ? Was its 
primary object to indicate from what courts appeals should lie ? 



JAMES PIIELAN. 4G3 

Was it to determine the general matter of appeals at all ? 
Surely not. It was to select from the eimmerated heads of 
general jurisdiction a few cases which should be orhjhudbj in- 
stituted in the Supreme Court. It says, In all other cases 
before mentioned the Supreme Court shall have appellate juris- 
diction.^ The grant of appellate jurisdiction is as comprehen- 
sive as the grant of power in the preceding clause. It attaches 
to ' cases,' not to courts. No words of limitation anywhere ap- 
pear ; and to interpolate by implication the words ' in the 
Confederate courts,' or other equivalent expression, but betokens 
the blindness, as it will tax to exertion the giant's strength. 

" The law now sought to be repealed is the 45tli section 
of our Judiciary Act, which gives to the Supreme Court of the 
Confederate States appellate jurisdiction over the State courts 
in cases arising nnder the Constitution, treaties and laws of the 
Confederate States, etc. This section of our act is, with cer- 
tain alterations, the 25th section of the Judiciary Act of 
the United States. The clause in our present Constitution, 
upon which said 45tli section is based, is identical — so far 
as this issue is concerned^ — ^witli the old Constitution upon which 
said 25th section was predicated. The history of that clause, 
and that law, therefore, under the old Government, are most 
pertinent in determining the constitutionality of the act pro- 
posed to be repealed. 

" Never did instrument undergo an analysis so sifting and 
severe as that to which the Constitution was subjected, from 
the adjournment of the Federal convention to its final ratifica- 
tion by the conventions of the States. The general plan was 
stretched upon the rack of torturing criticism ; every provision 
was punctured and explored ; ' trifles light as air ' confirmed 
the jealous lovers of liberty in apprehensions of danger ; specks 
on the horizon, that have long since disappeared, were scanned 
with microscopic eye, as portentous harbingers of evil ; and the 
uplifted voices of the mightiest intellects in the land were heard 
exclaiming, ' Lo ! here ! ' and ' Lo ! there ! ' as they labored 
to arouse and reveal to the people the alarming powers granted 
in the Constitution, all tending to centrahze and consolidate the 
National Government, to the destruction of the sovereignty of 



464 BENCH AKD BAE OF MISSISSIPPI. 

the States. The judicial power, filtered through the flames of 
an ahnost fanatic enmity, was charged with having yielded this 
appellate jurisdiction, in the enumerated cases, over the State 
tribunals ; and although sedulous to guard against the exag- 
gerations of this distempered zeal, and desirous to abridge, as 
sharply as truth and candor would permit, the powers conferred, 
yet this allegation was neither evaded nor denied by the 
friends of the Constitution ; but, on the contrary, without a dis- 
senting voice, the existence of such a power was boldly con- 
fessed and proclaimed. The Constitution was ratified, the Gov- 
ernment organized, and early during the first session of the first 
Congress the law was enacted giving to the Supreme Court the 
jurisdiction now contested as unconstitutional. That Congress, 
too, was composed of several distinguished statesmen, who had 
been mem hex's of the convention by which the Constitution was 
formed ; and all were fresh from the fierce debates, and flushed 
with the arguments against which it had battled, in its hard- 
won triumph through the States. The simple fact of its pas- 
sage, under such circumstances, would seem to roll a great 
stone upon the mouths of those now so vociferous in its denun- 
ciation. But this is not the only argument in favor of its con- 
stitutionality furnished by that occasion. The debates in the 
Senate were not reported until 1794. In the House an attempt 
Was made to prevent the organization of any inferior Federal 
courts, upon the ground that the State tribunals were sufficient 
for the administration of justice in those special cases specified 
in the Constitution ; and in this connection the principle of 
the appellate jurisdiction of the Supreme Court over the State 
judiciary was fully discussed and asserted without the utterance 
of an opposing voice. Mr. Smith, of South Carolina, said : 

" ' Justice could be as well administered in the State as in the District 
courts ; and their adjudications would be subject to revision in the Federal 
Supreme Court, which offered suificient security. If the State courts are 
to take cognizance of those causes which by the Constitution are declared 
to belong to the judicial courts of the United States, an appeal must lie 
in every case to the latter, otherwise the judicial authority of the Union 
might be altogether eluded. To deny such an appeal would be to frus- 
trate the most important objects of the Federal Government, and would 



JAMES PHELAN. 465 

obstruct its operations. . . . ' Appeals from all the State courts to 
the Supreme Court would be indispensable.' 

" Mr. Jackson said : 

" ' He was of the opinion that the people would much rather have one 
appeal which would answer every purpose ; he meant from the State 
courts directly to the Supreme Court of the continent. If State judges 
do not respect their oaths, there remains the appellate jurisdiction of the 
Supreme Court to control them. They can reverse or confirm the State 
decrees as they may find them right or wrong.' 

" The constitutionality and necessity of this power in the Su- 
preme Court was asserted by many others, extracts from whose 
speeches it is needless to accumulate, 

" Thus spoke from the porch of our national temple the liv- 
ing architects of the Constitution, in regard to its design, ere 
the scaffolding was removed through which it had ascended. 
The bill passed, was approved by Washington, himself Presi- 
dent of the Federal Convention, and became a law. . . . 

' ' In 1815 an act was passed giving to State courts jurisdiction of 
all comj)laints, suits, and prosecutions for taxes, duties, etc. , aris- 
mg under acts of Congress. No such suits or prosecutions, it pro- 
vided, in any State court, should be delayed, barred, suspended, 
or defeated by any State law ; and all final judgments were ex- 
aminable in the courts of the United States ' according to the act 
of 17S9.^ This bill originated in the House, was referred to a 
special committee in the Senate, composed of Bibb of Ken- 
tucky, Barbour of Virginia, and Chase of Vermont, who re- 
ported it with a slight amendment, was then considered in com- 
mittee of the whole, and finally passed both Houses, without even 
a division ! Yet this Congress was composed of such men as 
Gaston, Macon, Cheves, Forsyth, Troup, Lowndes, Pickens, 
and Calhoun ! Reason becomes restive and probability impa- 
tient in thus laboring the facts of history in refutation of a 
fallacy so bald and patent as that embodied in the pending 
amendment. Let their torturi ig cease. 

" From the date of its approval to the hour which shook the 
Confederacy asunder, through all the fluctuations of principles 
and predominance of parties, under every administration, and 



466 BENCH A^B BAR OF MISSISSIPPI. 

amid the storms of political strife which have convulsed the 
comitry, no effort has ever been made to alter or repeal this 
lirst-born of our earliest Congress. And are the teachings of 
time, the sanctions of experience, the acquiescence of genera- 
tions of great and good men who have gone before, to pass us 
by, unheeded as the idle wind ? Are we now to be told, in 
tones of sternness, intolerant of denial, that a law, thus mantled 
with the sanctities of age, and covered with the hoar-frost of 
antiquity and tradition, is but the wrinkled harlot of political 
prostitution, still pregnant with the foul progeny of Federalism ? 
"I am not unaware that, in a case or two in the State 
tribunals of Georgia and Virginia, the constitutionality of the 
act under discussion has been involved, and advocates of repeal 
have referred to those decisions as the impregnable fortress from 
which we are to be demolished. Unable to obtain the volumes, 
I invoke their production by those who follow me in reply, and 
pledge myself to establish that in not more than one of them, 
perhaps, was the question of the constitutionality of the existino- 
law either presented or decided. But admitting at this poin't 
the full force attributed to those few isolated decisions, to what 
weight are they entitled, even as mere legal precedent or 
authority, in comparison with the ' multitude which no man can 
number ' of distinguished jurists by whom the law has been 
recognized, obeyed, and defended for nearly a century, in courts 
of equal dignity, convened over half a continent ! Their 
novelty alone invests them with notoriety ; and, contrasted with 
the array of learning and intellect by which they are confronted 
and confuted, they are but as ' dust in the balance,' or atoms in 
the air. Their fate is conclusive of their fallacy. Things of a 
day— the wonder of an hour— like bubbles, they rose and broke 
upon the torrent they sought to stem, and, unheeded, were 
swept into forgetfulness. Again, by what strange reversal of 
established rule and perversion of ancient practice do Senators 
flout in our faces and demand deference to the decrees of these 
judges of a State, to the discardal and contempt of the opinions 
of the supreme bench of the United States, by which, without 
a dissenting voice, they were as often reversed and denied ? 
Senators would illuminate and magnify, beyond all legitimate 



JAMES PHELAK. 467 

influence, tlie few men by whom tliey are sustained, wliilst tliev 
seek to dwarf and diminish the multitude of mighty intellects 
by whom their allies are overshadowed and obscured. Tlie 
fables of the frog and the ox, and the cock among the horses, 
aptly illustrate the hugeness of their effort and the danger of 
their position. As if conscious of the futility of the enter- 
prise in which they have embarked, the Senator from Texas (Mr. 
Wigfall) more than intimates his belief that the existence of a 
Supreme Court is detrimental to the welfare of the country ; 
and threatens, if the pending amendment is defeated, to resist 
the organization of such a tribunal. Energized by a spirit of 
such relentless hostility, the rude hand of innovation is, then, 
to be lifted for the destruction of that ancient temple whose 
solemn ministrations forbid the strange fire he would pile upon 
its altar ! Will not such a sentiment startle from their repose 
those who appreciate and would perpetuate the checks and 
balances which preserve, in equipoise, the delicately-adjusted 
machinery of our confederate form of government ? . . . 

" The act of 1789, though constitutional, was justly obnoxious 
in its detail, to criticism and censure. Congress, however, and 
not the court, merited condemnation for tlie policy it initiated. 
The wrong alleged to have been perpetrated was not in en- 
larging, but in limiting, in the cases specified, arising in State 
courts, the appellate jurisdiction of that tribunal. The act was 
as follows : 

" ' Sec. 25. A final judgment or decree, in any suit in the highest court 
of law or equity of a State, in whch a decision can be had, where is 
drawn in question the validity of a treaty, or statute of, or an authority 
exercised under the United States, and the decision is against their valid- 
ity, or where is drawn in question the validity of a statute of, or author- 
ity exercised under any State, on the ground of their being repugnant to 
the Constitution, treaties, or laws of the United States, and the decision 
is in favor of their mlidity, may be re-examined and revised or affirmed, in 
the Supreme Court of the United States, upon a writ of error.' 

" The direct and practical tendency of this section was to 
strengthen the legislative and executive, and to deprive the 
judicial department of its legitimate influence in the operations 
of the Government. It avoids, as far as may be, all interference 



468 BENCH AND BAK OF MISSISSIPPI. 

by tlie Supreme Court witli tlie action and designs of the other 
departments, by sheltering them behind the judgment of the 
State judicatures whenever those tribunals decided in favor of 
their usurpations. If, in such a contest, the State court sus- 
tained the validity of Federal legislation, its decree was final ; no 
aiypeal was alloived ! Should such court, however, deny the 
validity of such action, an appeal might he taken. Tliere was, 
then, everything to be gained by the Government, and. nothing 
to lose. A decree in favor of the power exercised by tlie 
Federal Government was virtually declared to be infallible. A 
denial of its power by the same court was supposed to be wrong, 
and might be revised. Now^ this offensive feature of the old 
act has been abolished, in the law enacted hy the Provisional 
Congress, proposed to he repealed. Appellate jurisdiction is 
given to the Supreme Court, in the enumerated cases, whether 
the State tribunals admit or deny the validity of legislative 
action, and whether they oppose or support the assumed 
powers of the Federal Government. The partition wall has been 
broken down which forbid the entrance of the citizen into the 
high forum of the national judiciary, to invoke protection 
against legislative oppression, sustained by sectional adjudica- 
tion ; and the door of its majestic temple now stands open 
wide to welcome the humblest suitor who seeks its altar to re- 
dress his wrong ! . . . 

" The flower takes its coloring from the soil from which it 
springs, and the atmosphere hy which it is surrounded. The 
venerable Senator (Mr. Barnwell) was reared in South Carolina, 
and a member of its famed Convention in 1832. The Senator 
from Alabama (Mr. Yancey) also, I believe, a native of that 
State, has battled for the principle as it were the law, scorched 
by the finger of heaven upon tablet stone ; whilst the Senator 
from Texas (Mr. Wigfall), reared in the same State, full 
charged in every fibre of his frame with its subtle fluid, sparkles 
whenever touched with the anhnating electricity of the doctrine. 
Let me not be misunderstood in my reference to South Caro- 
lina. My earliest 2)olitical reading and reflection are blended 
with an appreciation of her noble but erratic zeal in seeking 
' to drag by the locks ' the drowning rights and honor of the 



JAMES PHELAI^. 4G9 

South. Denying the remedy by which slie sought to redress 
our wrongs, my heart ever thrilled with admiration of her gal- 
lant people and dauntless chiefs ; and, as barrier after barrier 
gave way which guarded the citadel of Southern safety under 
the pressure of compromises, concocted by political factions, 
struggling for the spoils of power, I watched her standing aloof 
from the vain strife, with a faith that never faltered, and an 
eye that never slept — the lone sentinel upon the watch-tower of 
Southern freedom ; and when the fulness of time had come, by 
her prophet-statesman so long foretold, never can my soul eo 
thrill again with gratitude and gladness as when I beheld her 
snatch the symbol of her sovereignty from the gorgeous tlag of 
the Union, fling her blue banner, with its defiant star, t(» the 
mustering winds of revolution, and prepare to tread alone, if 
need be, the red wine-press of war. But stern and self-sacrific- 
ing as has been her spirit in defence of Southern rights and 
honor, the political theory of our Government, as propounded 
by her distinguished statesmen, and to which the pending 
amendment is allied, never has and never will he sanctioned 
by any portion of the American people. I do not invoke, 
neither will I participate in, any discussion of the doctrine of 
nullification. The subject was exhausted in that ' war of the 
giants,' under the shock of whose encounter the nation stood 
entranced. Further argument or effort upon the theme, like 
the kaleidoscope, though casting, perhaps, novel and attractive 
figures, would be but multiplied reflections of the bright parti- 
cles and broken fragments of that logic and eloquence, the full 
glory of whose pristine splendor illumines the past. Whether 
right or wrong, as an abstract principle, the necessity for a 
recognition of the doctrine of nullification has been merged in a 
practical assertion of the great right of secession, now the foun- 
dation-stone of our new Republic. An attempted exercise of 
this sacred right under the old Government, it was always felt 
hazarded, and did actually awaken, th. tocsin of war. ^ow, if 
in her sovereign capacity a sister State shall proclaim her sepa- 
ration from the Confederation, we smoke the calumet, and b.d 

her depart in peace. ... 

"1 desire now no strong government, like a central and 



470 BENCH AND BAR OF MISSISSIPPI. 

self-dejiendent sun, attracting bj its power and aT)sorbing 
by its influence the essential and substantial rights of the 
people and the States ; l)ut rather, like the moon, shedding 
its serener ray of light, reflected from the original fountain, 
mingling its radiance and sharing the glory of the night with 
the bright stars of sovereign and independent States by which it 
is attended. But pass the measure now pending, and the stars, 
one after another, will fall from your national standard, ' even 
as a fig-tree casteth its untimely figs, when shaken of a mighty 
wind.' The frailest gossamer that floats upon the breeze will 
be a chain of triple steel in comparison with the brittle tie wdnch 
binds together our rising Confederacy. Let the mighty moun- 
tain of our revolution, whose painful and protracted laboring is 
now filling the land with gore and groaning, give birth— neither 
to a mouse contemptible for its insignificance, nor to a mon- 
ster, dangerous for its giant strength ; but let there come forth 
a being of manly beauty and heroic mould, clothed with majesty, 
but girt with goodness, a compound of humanity and divinity, 
and which, though liable to die, will impart immortality to its 
existence by the wisdom, the justice, and the moderation of its 
reign. ' ' 

Messrs. Semmes, of Louisiana ; Yancey, of Alabama ; Barnwell, of South 
Carolina ; Haynes, of Tennessee ; and Maxwell, of Florida, having ad- 
dressed the Senate in sujjport of the amendment of the Senator from 
Alabama, Mr. Clay, 

Mr. Phelan said : 

" Mr. President, having been forced to open this debate, and 
having furnished a target for distinguished Senators who have 
occupied the floor, I accept the indulgence, in fairness accorded 
me, of a general reply to the converging batteries by which my 
argument has been assailed. The storm of assault has been en- 
countered, and the positions defended, I humbly conceive, still 
stand, not only undeniolished, but impregnable, strengthened 
rather than impaired by the novel nature of the attack Mdiich 
they have elicited. ... 

" In seeking to estabhsh the power of Congress to grant to 
the Supreme Court aiDpellate jurisdiction over the State courts 



JAMES PHELAN. 471 

in ' cases ' arising nnder the Constitution, treaties and laws of 
the Confederate States, I hastily collated the facts of contem- 
poraneons history and exposition. Challenged to such a com- 
pilation by the Senator from Texas, the legitimacy of the argu- 
ment, dedncible from that source in the pending issue, was not 
only acknowledged, but asserted. It was not, therefore, to 
have been anticipated, after appearing at the summons, that the 
advocates of repeal would not only have shunned tlie combat, 
but have denounced, as beneath the dignity of the contest, their 
own chosen arena. Yet what says the Senator from Alabama 
(Mr. Yancey) in relation to the mass of historical facts adduced 
in my former argument, persuasive, if not absolutely conclusive, 
of the constitutionality of the act he urges us to repeal ? Refus- 
ing to confess the force, but without attempting to weaken, by 
analysis or denial, this truthful and convincing array, with 
scarcely less than divine authority he says to the mountain 
pile, ' Be thou removed and be thou cast into the sea.' But the 
stubborn hill still obstructs his pathway. He dare not hazard 
its ascent ; he cannot remove, and his commands it will not 
obey. I also cited the opinions of eminent statesmen of an 
early day in exposition and support of the act ' sought to be 
destroyed. To this argument the Senator from Alabama re- 
plies — and it has been repeated by others on the same side— that 
both precedents and opinions are of a nature too doubtful and 
dangerous either to command his respect or to furnish a basis 
for his legislative action ; and with that boldness which ' would 
grasp without remorse, and wear without shame, tlie diadem of 
the Cgesars,' he proclaims that we of to-day better comprehend 
the meaning of the Constitution than those sages whose creative 
minds brought it into being. 

" Mr. President, it was only Him who spake as never man 
spake, wdio could thus dissipate, by the word of his mouth, the 
sayings 'of them of old time,' and substitute for their teach- 
ings His own infallibility. I disclaim the portion falling to 
myself, of those high powers, which the sentiment of the Sena- 
tor from Alabama would confer upon us all. I delight to 
drink at those deep wells -at which generations have slaked 
their thirstings-dug in the wide waste of the world's barren 
3U 



472 BEI^CH A^D BAE OF MISSISSIPPI. 

brain, by those patriarchs of the past, who have now gone to 
rest, as rest I trust they do, ' where the good rest, and tlieir 
works do follow them.' I desire to imbibe truth, and seek 
for strength in the warfare of life at the well-worn pilgrim 
shrines of 

" ' the great of old, 

Those dead, but sceptered sovereigns, who still rule 

Our spirits from their urns. ' 

" I prefer to steer my frail and tossing bark by the beacons 
and landmarks of those ' immortal names that w^ere not born 
to die ; ' and in comparison with whose mighty fame we puny 
politicians of to-day but duplicate that wonder of the nmseum 
which represents the mammoth frame of the mastodon bestriding 
the tiny skeleton of the mouse. Conscious of my infirmity, and 
distrustful of my own erring judgment, I choose to follow the 
iruidance of those wise men the radiant chandeher of whose 
wisdom and virtue and intellect illumines my pathway, rather 
than, like the ephemeral firefly, to pursue my devious wander- 
ings, aided only by the dim ray emitted from the dark lantern 
of m}'' own mind. 

" This novel and abrupt discardal of all that has hitherto been 
recognized as sacred and legitimate in such investigations as 
that in which w^e are now engaged, could only have been ex- 
torted by the dire extremity to which our opponents have been 
reduced. In his great speech upon the constitutionality of the 
United States Bank, Mr. Madison asserted the following rules 
of construction in the interpretation of the Constitution : 

" ' An interpretation which destroys the very characteristics of the Gov- 
ernment cannot be just.' 

" ' In controverted cases, the meaning of the parties to the instrument, if 
to be collected by reasonable evidence, is a proper guide.' 

"' Contemporaneous ana concurreiit expositions area reasonable evidence 
of the meaning of the parties.' 

" Undeterred, therefore, by the cavalier coolness witli which 
such testimony has been flipped from the fingers of Senators, I 
proceed to add other selections from the stores of contemporane- 



JAMES PHELAN. 473 

oils history in condemnation of the insidious heresy ^vit]l wliich 
the policy of tlie country is so eagerly sought to be "impregnated. 

" I read from the 82d number of the Federal 1 sty 

A YoiCE.— Alexander Ilamikon, the Federali*. 

Me. Phelan.— " Mr. President, I have heard, Avitliout 
astonishment, the name of this truly great and patriotic states- 
man huffed by scuffling partisans amid the wrangliiigs of tlic 
hustings, but I am surprised that it should thus be assailed witli 
a sneer, in a body supposed to be conversant with liis history. 
Mr. Hamilton was never a Federalist in that sense Avliich made 
it a term of opprobrium. He never held that the Constitution 
constituted a government of the aggregate jpeoj>le, and not a 
compact hetween sooereign States. This was the fundamental 
principle which gave rise to the old Federal and Republican 
parties. He declared ' that there is not a syllable in the plan 
of the Constitution which empowers the national courts to con- 
strue the laws according to the sinrit of the Constitution.^ 

" Mr. Calhoun said : 

" 'The doctrine of cousolidation maintained by the Senator from Massa- 
chusetts was not the doctrine of Hamilton, who strenuously maintained 
the federative cTiaracter of the Constitution^ but who was accused of sup- 
porting a policy which would lead to consolidation. ' . . . 

" 1 challenged the production of those decisions in State tribu- 
nals by which the unconstitutionality of the act sought to be re- 
pealed was alleged to have been maintained, and pledged niv- 
self to prove that in not more than one or two of them wji^s tbe 
point ever presented or determined. I also denied that the ok: 
Supreme Court had ever asserted any power ovar political qms- 
tions., or the right to adjudicate such controversies between the 
States and the General Government as parties to tlie origiind 
compact, and that the few cases which had provoked criticism, 
as trenching upon the sovereignty of tlie States, only granted 
the citizen, when sued or prosecuted h/ a State, a riglit to liave 
the judgment against himself, involving his rights under the 
Constitution, the treaties, or the laws of the United States, re- 
viewed in the supreme national judiciary. How has this solici- 
tation and denial been met and accepted i Hours of argument 



474 BENCH AND BAK OF MISSISSIPPI. 

liave been expended, and indetinite references made to deci- 
sions, but without the presence of a volnme, or tlie analysis of a 
solitary case ! A judgment by default, or a sentence for stand- 
ing mute, maf fairly be. demanded on these points against the 
friends of the amendment. As a substitute for the specific dis- 
closures of judicial arrogance and usurpation, we were warned 
to anticipate, under the laws of 1789 on the part of the Federal 
judiciary, we have only listened to discursive criticisms upon 
the character and influence of a distinguished individual, the es- 
sence of all of which was energetically declaimed, in the lan- 
guage of the Senator from Texas (Mr. Wigfall), ' that in 
stamping his opinion upon the country, Chief Justice Marshall 
had done more to change the character of our Government, to 
fasten upon its policy a tendency to consolidation, and to destroy 
the sovereignty of the States, than any other man who ever 
lived.' Irrelevant as such general assertions are to the pend- 
ing issue, I trust I may be indulged bridly to attempt an hum- 
ble vindication of that eminent jurist from the harsh charge with 
which his memory has been assailed. Time would not permit, 
nor does the occasion demand, a minute dissection of the nu- 
merous decisions upon constitutional law ^^I'onounced by that 
eminent man. ] t will be sufficient to establish his sacred regard 
for the sovereignty of the States, his denial of the liability of a 
State to be made a defendant upon original proceedings, his 
disclaimer of all right in the Federal judiciary to determine jxv- 
litical questions^ and his restriction of its jurisdiction to ' cases ' 
in law or equity between parties liable to be summoned to its 
forum. 

"Pending the debate in the Virginia Convention, as to 
whether a State was not liable to be sued under the grant of 
judicial power, Mr. Marshall said : 

" ' With respect to disputes between a State and the citizens of anotlior 
State, the Federal jurisdiction has been decried with unusual vehemence. 
I hope no gentleman will think that a State will be called at the larofthe 
Federal court. ... It is not rational to suppose that the sovereign 
power shall be dragged before a court. . . . It is said there will be 
partiality in it if a State cannot he defendant; if an mdimdual cannot pro- 
ceed to obtain judgment against u State, though he may be Sued by a 



JAMES PIIELAIS'. 475 

State. It is necessary to be so, and cannot be avoided. I see a difficulty 
in making a State defemlaut which does not prevent its being plaintiff.' 

" In 1800, one Bobbins was bronght by haheai'i corpus before 
the district judge of South Carohuca, wlien it appeared that tlie 
prisoner was charged with having committed murder on the 
high seas, on board a ship of war belonging to England. Ke- 
quisition was made by the British minister that he be delivered 
up, by virtue of the twenty- seventh article of the treaty of 
amity between the United States and Great Britain. At the 
request of Mr. Adams, then President, an order was made to 
that effect. At the next session the subject was brought be- 
fore Congress by Mr. Livingston, of New York, by certain reso- 
lutions, one of which began as follows : 

" ' Resohed, That inasmuch as the Constitution of the United States de- 
clares that the judiciary power shall extend to all questions arising under 
the Constitution, laws, and treaties of the United States, etc' 

"In the debate which the resolutions elicited, Mr. Marshall 
said : 

" ' The gentleman from New York has relied on the 3d section of the 
3d article of the Constitution, which enumerates the cases to which the 
judicial power of the United States extends, as expressly including that 
now under consideration. Before he examined that section it would not 
be improper to notice a very material mis-statement of it made in the reso- 
lutions offered by the gentleman. By the Constitution, the judicial power 
of the United States is extended to all cases in law or equity arising under 
the Constitution, laws, and treaties of the United States ; but the resolu- 
tions declare the judicial power to extend to all questions arising under 
the Constitution, treaties, and laws of the United States. The difference 
between the Constitution and the resolutions was material and apparent. 
A case in law or equity was a term well understood, and of Ibnited signifi- 
cation. It was a controversy between parties which had taken a shape 
for judicial decision. If the judicial power extended to every question under 
the Constitution, it would involve almost every subject jiroper for legisla- 
tion, discussion, and decision ; if to every question under the laws and 
treaties of the United States, it would involve almost every subject on which 
the executive could act. The division of power stated by the gentleman 
could exist no longer, and the other departments would be swallowed up 
by the judiciary." ... By extending the judicial power to all 
cases in law and equity, the Constitution had never been understood to 



476 BENCH AND BAR OF MISSISSIPPI. 

confer on that department any political poicer whatever. To come within 
this description, a question must assume a legal form for a forensic litiga- 
tion and judicial decision. There must be parties to come into court who 
can he reached hy its process and hound hy its power ; whose rights admit of 
ultimate decision by a tribunal to which they are bound to submit. A 
" aise " in law or equity — proper for judicial decision — may arise under a 
treaty where the rights of individuals acquired or secured by a treaty are 
to be asserted or defended in court. But the judicial pjovcer cannot extend to 

POLITICAL COMPACTS.' 

" Can tlie Senator from Texas (Mr. Wigfall) conceive or ex- 
press a purer doctrine in regard to the judicial power, as con- 
nected witli the sovereignty of the States, than this speech con- 
tains ? 

" In 1S24, in Osbernrs. United States Bank, Judge Marshall, 
after quoting the judicial clause, reiterates the same j^rinciple, as 
follows : 

" ' This clause enables the judicial department to receive jurisdiction to 
the full extent of the Constitution, laws, and treaties of the United States, 
when any question respecting them sh&W assume such a form fhat t\\e ^n- 
dicial power is capable of acting on it. But that power is capable of act- 
ing only when the subject is submitted to it, by a party who asserts his 
r\g\\ts, in the form prescribed by law. It then becomes a case. . . . The 
words seem intended to be as extensive as the Constitution, laws, and 
treaties of the Union, and designed to give the courts of the Government 
the construction of all its acts, so far as they affect the rights of individu- 
als.' 

" Let me close this imperfect defence both of the Supreme 
Court and of the eminent Chief Justice, by whom it was so long 
adorned, against the special distrust and criticism of the Senator 
from Texas, by a reference to the opinions of Mr. Calhoun : 

" ' I yield,' says he, ' to few in my attachment to the judiciary depart- 
ment. I am fully sensible of its importance, and would maintain it to tlie 
fullest extent in its constitutional powers and independence.' 

" Again : ' I must greatly lower my opinion of that high and important 
tribunal for intelligence, justice, and attachment to the Constitution ; and 
particularly of that pure and upright magistrate who has so long, and 
with such distinguished honor to himself and the Union, presided over its 
deliberations with the weight that belongs to an intellect of the first 
order, united with the most spotless integrity — to believe, for a moment, 



JAMES PHELAJS". 477 

that an attempt so plainly and manifestly unconstitutional as a resort to 
force would be in such a contest, could be sustained by the sanction of its 
authority.' 

"Mr. President, it was asserted that to resist the pending 
amendment was to favor the odious doctrine of federalism, and 
to assume a position antagonistic to the principles of the Repub- 
lican party of early days. This charge swept within its com- 
pass a respectable portion of members on this floor. I denied 
the imputation with an emphasis which disdained all com- 
promise, and defied the production of a particle of truth by 
which it could be substantiated. Who has attempted to accept 
the challenge, extorted from us by so severe an arraignment ? 

" My whole argument, thus far, has tended not only to a gen- 
eral refutation of the charge alleged, but to prove that the 
maintenance of the law, sought to be repealed, was the doctrine 
and design of the old Republican party. Let the proof be 
more closely riveted. The memorable contest of 1798 brought 
that party into existence. Mr. Madison, more than any other 
statesman, stood forth its parent and sponsor ; and his celebrated 
Report has ever famished the platform of the party, and the 
exposition of its principles. He was a member of the first 
Congress, in 1789, by which the Judiciary Act was passed, and 
defended this appellate power of the Supreme Court over State 
tribunals in the following emphatic language : 

" ' Mr. Madison said it would not be doubted that some judiciary sys- 
tem was necessary to accomplish the objects of the Government, and that 
it ought to be commensxirate icith the other hranclies of the Oovemment. 
Under the late confederation it could scarcely be said that there was any 
real legislative power ; there was no executive branch, and the judicial 
was so confined as to be of little consequence. In the new Constitution 
a regular system is provided. The legislative power is made effective for 
its objects ; the executive is co-extensive with the legislative ; and it is 
equally jyrofer that this should be the case with the judicial. . . . 

" ' Laying aside all other difficulties, a review of the Constitution of the 
courts in many States will satisfy us that they cannot be trusted with the ex- 
ecution of the Federal laws. In some States they might be safe organs of 
such a jurisdiction ; but in others they are so dependent on State legisla- 
tures that to make the Federal laws dependent on them would throw us 



478 BENCH AND BAR OF MISSISSIPPI. 

back into all the embarrassments which characterized our former situa- 
tion.' 

" The doctrine advanced by tlie Yirginia and Kentucky resolu- 
tions of 1798-99 does not deny the constitutionality of tliis ap- 
pellate power of tlie Federal Supreme Court in ' cases ' involv- 
ing the rights of individuals. They assert a principle in no way 
connected with it. The fundamental doctrine they present, as 
embraced in the third Virginia resolution, is ' that in case of the 
exercise of powers not granted in the compact, the States who 
are j9«/'^/<f-s thereto have the right to interpose for arresting the 
evil, and for maintaining witliin their respective limits the 
authorities and liberties appertaining to them.' It is only the 
States, in their sovereign cajDacity as such — as parties to the 
compact — and through the same medium by which they became 
parties, that can thus ' interpose ' to arrest the execution of 
Federal laws. No single department of a State government can 
do so ; and, until the State does thus ' interpose,' mere indi- 
vidual rights, litigated in the form of judicial ' cases ' arising 
under the Constitution and laws of the United States, are recog- 
nized as being subject to the final adjudication of the Federal 
judiciary. Until the State in its sovereign capacity does thus 
interpose, its sovereignty cannot be involved ! This right of a 
State thus to interpose was denied by the old Federal party, 
who asserted, in the answers of their legislatures to the Yirginia 
resolutions, ' that in the Federal courts, exclusively , and in the 
Supreme Court of the United States, ultimately, was vested the 
sole authority of deciding on the constitutionality of every act 
of the Congress of the United States.' To this Mr. Madison, in 
his Report, thus replies : 

" ' It is objected that the judicial authority is to be regarded as the sole 
expositor of the Constitution, in the last resort. On this objection it may 
be observed, 1st, that there maybe instances of usurped power which the 
fo)'ms of the Constitution would never draw within the control of the 
judicial department ; 2d, that if the decision of the judiciary be raised 
above the authority of the sovereign parties to the Constitution, the de- 
cisions of the other departments, not carried by the forms of the Consti- 
tution before the judiciary, must be e(]ually authoritative and final with 
the decisions of that department. But the proper answer to the objec- 



JAMES PHELAN. 479 

tion is that the resolution of the General Assembly relates to those great 
and extraordinary occasions in which all the ordinary forms of the Consti- 
tution may prove ineflfectual against infractions dangerous to the es- 
sential rights of the j^arties to it. The resolution supposes that' dangerous 
forms, not delegated, may not only be usurped and executed by the other 
departments, but that the judicial department also may exercise or sanc- 
tion dangerous powers beyond the grant of the Constitution ; and, conse- 
(piently, that the ultimate right of the parties to the Constitution, to judge 
whether the compact has been dangerously violated, must extend to viola- 
tions by one delegated authority as well as by another ; by the judiciary 
as well as by the executive or the legislative. 

'' ' However true it may be that the judicial department is, in all questions, 
submitted to it by the forms of the Constitution, to decide in the last resort, 
this resort must, necessarily, be deemed the last in relation to the authori- 
ties of the other departments of Government ; not in relation to the 
rights of the parties to the constitutional com^iact from which the judicial 
as well as the other departments hold their delegated trusts.' 

" Mr. Jefferson, the friend of Madison, the champion of the 
old Republican party, and the apostle of liberty, declared 

" ' That the courts of the States retain all their judicial cognizances not 
expressly alienated by the Federal Constitution. The Federal Constitu- 
tion alienates from them all cases arising under the Constitution, laws of 
Congress, treaties, etc' 

" Is it not wonderful that the alien and sedition laws, which 
only violated the rights of the citizen, should have alarmed the 
statesmen of that day, and aroused a tempest of popular indig- 
nation, which, rolling its thunders to the Capitol, prostrated in 
ruins a powerful party, and tore the obnoxious enactments from 
the statute-book ; while an act now branded as a fell destroyer 
of the sovereignty of the States was then permitted to erect its 
slaughter-house upon an opposite page of the Constitution ! 
Truly are we ' wiser in our generation than were the children 
of light.' . . . 

" Let the emphatic asseveration of Mr. Calhoun finish the 
proof. In defending the peculiar traits of his party against Mr. 
Webster, in 1833, and in reply to an argument based ujion the 
judicial ])Ower of the General Government, Mr. Calhoun said : 

" ' The clause in the Constitution which provides that the judicial power 
shall extend to all cases in law or equity arising under the Constitution, 



480 BENCH AND BAE OF MISSISSIPPI. 

and to the laws and treaties made under its authority, has no tearing on 
the points in controversy.'' 

" Mr. .President, a word, and I have done. The principle of 
the amendment, so far from elevating, trails in the dust the true 
dignity of the States. It recognizes the omnipotent power of a 
supreme bench, composed of a few judges, virtually to disrupt 
their alliance with the Confederacy without the consent of the 
people. It arms a single co-ordinate department of a State gov- 
ernment with the despotic prerogative of paralyzing and arrest- 
ing at any moment, and against their will, the co-operation of 
both the legislative and. executive departments, in giving effi- 
ciency to the administration of the General Government. 

" The princijjle deeply dishonors, in the estimation of mankind, 
the lofty spirit and true dignity of our common Confederacy. 
National degradation invites indignity. In the elegant language 
of Junius, ' Public Honor is security. The feather that 
adorns the soaring bird supports his flight. Strip him of his 
jilumage, and you fix him to the earth. ' There is something 
august and imposing in the idea of a State convoking in coun- 
cil the majestic sovereignty of its people, suspending its exist- 
ing governmental organization, and proclaiming in that popular 
voice, which is as the voice of God, that it dissolves its political 
connection with the Confederation, and reassumes, as* an inde- 
pendent State, its separate seat in the great college of nations I 
The mighty consequences incident to such action are consistent 
with the potent and imposing organ through which it is pro- 
claimed. . . . " 



WILLIAM K. BARKSDALE. 481 



WILLIAM R. BARKSDALE. 

William Robert Barksdale was Lorn in Lauderdale County, 
Alabama, on the 26tb of April, 1834, biit removed with liis par- 
ents, in October of the same year, to the eoimty of Yalobusha, in 
Mississippi. They were natives of Tennessee, and were intel- 
ligent and influential citizens, noted for their exeinplary moral 
and social worth, and for their domestic virtues and parental 
solicitude. And the subject of this sketch, after having re- 
ceived the advantages of the best schools o'f his county, was 
sent, in 1851, to the State University at Oxford, where he grad- 
uated with distinction in 1855. 

His depoi'tment while at college was notably scholastic, and 
his studious habits, strict observance of the rules, c9urteous 
manners, and high sense of honor gained the admiration and 
esteem both of the professors and of his fellow-students, and he 
developed during his collegiate course a vigor of intellect and an 
iuquisitiveness of mind which destined him for an eminent 
sphere in life. So prominent were his scholarly attainments, 
and so exemplary his integrity and moral habits, that, after hav- 
ing graduated, he was retained two years at the University as an 
adjunct professor ; but, in 1857, having chosen the profession of 
law, for which his talents seemed peculiarly adapted, he entered 
the law school of the University, and in 1859 received his di- 
ploma from that department. He then returned to Yalobusha 
County, established his office in the town of Grenada, and entered 
immediately upon a brilliant professional career. But the ver- 
satility of his genius, his eloquent oratory, and ardent patriotism 
were soon demanded in another sphere, and he responded wnth 
alacrity to the public call, and entered the service of his State 
with all the spirit and enthusiasm of his nature. 

In the fall of 1860 he was chosen by the States Rights party, 
of which he was a warm and strenuous advocate, to a seat in the 
memorable convention which, on the 9th of January, 1861, 



482 BENCH AND BAK OF MISSISSIPPI. 

passed the Mississippi Ordinance of Secession, and, altliongli he 
was but twenty-six years of age, he was a conspicuous member 
in that distinguished assembly. The vigor of his counsel, the 
ardor of his patriotism, and the fire of his eloquence not only 
challenged the attention and respect of the wisest men, but 
kindled a glow which permeated the action of that body and 
gave warmth to its proceedings. 

But if Mr. Barksdale was ardent in his advocacy of secession, 
he was equally ready to seal the act with his blood, and, at the 
tirst call of his State for troops, in 1861, he responded to the 
sound of its bugle, and from that day to the closing scene of the 
struggle he followed the flag of the Confederacy with Spartan 
gallantry and patriotic devotion. 

In 1862 he was promoted to the position of Adjutant-Gen- 
eral on the staff of General "W. S. Featherston, with the rank of 
major, and served in that capacity until 186-1, when he was trans- 
ferred to the staff of Major-General Walthall. He was a faith- 
ful and efficient officer. General Featherston, in his eulogy on 
his life and character, delivered in the Mississippi House of 
Representatives in January, 1877, said : 

" He was a model soldier, fearless in action, self-sacrificing 
and noble in example. Like the heroe^ of the Roman Republic, 
his country was his idol, upon whose altar no sacrifice was too 
dear to be made. He followed the path of duty without reck- 
oning where it led — whether to victory or the grave. In the 
storm of battle he was calm, self-possessed, and ever pressing 
upon the foe with undaunted courage. In camp, on the march, 
and in all the various phases of a soldier's life, he was always to 
be found in the full discharge of his whole duty — an exemplar 
to his comrades in arms. And although he rose not higher than 
a major in the military service, he was in intellect and courage, 
strategy, and all the elements of true generalship, capable of 
higher command. He did not seek his own promotion : he rose 
above all selfish thoughts, and with all the zeal that could glow 
in the heart of a pure patriot, looked alone to the iiuiepen deuce 
of his native South, and to the attainment of that end he directed 
all the powers of his mind and body." 

At the close of the war Major Barksdale resumed the prac- 



WILLIAM K. BAEKSDALE. 483 

tice of liis profession in Yalobnslia County, accepted with manli- 
ness tlie harsh degrees whicli Fate had pronounced against liis 
country, and maintained tlie terms of the Southern surrender 
with a faith which only the highest sense of honor could guar- 
antee. 

He applied himself diligently to the restoration of law, order, 
and good government ; and so vigorous and fervid were his efforts 
in this respect, so just and pronounced the appreciation of his 
ability and integrity, that, during the excliisiveness of the 
Radical regime, he was elected to the office of District Attor- 
ney, a position which he filled with an efficiency that checked 
the demoralizing effects of Radical policy and re-established the 
security of society. He was a bold and fearless officer, and fol- 
lowed the path of his duty regardless of circumstances. He 
had no compromise to make with lawlessness, no leniency to 
offer to crime and corruption, but his aims were fixed upon the 
goal of right, and he was guided only by the standard of integ- 
rity. 

In the great political revolution of 1875 Major Barksdale was 
elected to a seat in the lower House of the Legislature of Missis- 
sippi, and held a prominent position in that body. He took an 
active part in the dethronement of Governor Ames and in the 
dispersion of his notorious officials. His commanding yet 
courteous dignity, his thrilling eloquenc^" and marked ability, 
gave him an intiuence that made its impression upon every 
legislative act, and his opinions were eminent among the criteri- 
ons of wisdom and expediency. 

But in the noonday of his promise, and in the midst of the re- 
viving hopes of his country, to which he had so prominently ad- 
ministered, his career was suddenly ended, and Mississijjpi was 
called upon to mourn the death of one of her most devoted and 
useful sons. He died at Grenada on the lOtli of January, 1877. 

Many beautiful and touching tributes were paid to his mem- 
ory in both Houses of the Legislature, which was then in ses- 
sion, and his character and services were set forth in preambles 
and resolutions, and by the speakers, in elegant and glowing 
terms, while the members of the bar embalmed his memory in 
honor upon the records of the courts of his county. 



484 BENCH AND BAK OF MISSISSIPPI. 

As a lawyer Major Barksdale was a safe and conscientions 
counsellor. He was quick to perceive, jet cautious in his con- 
clusions. His mind was Higlily analytical in its operations, 
and his judgment was the result of a thorough process of reason- 
ing. While his genius was of a superior order, he yet trusted 
no specious paths of instinct, and relied upon no byways of in- 
tuition. His cases were thoughtfully and thoroughly investi- 
gated, and he proceeded with the sure-footed pace of reason. 

He was eminently a j)ractical man, and, discarding the mere 
theoretical and visionary, he sought only for the reasonable and 
the real. He viewed things in their true relation, and when sat- 
isfied as to their character and significance, he acted upon his 
own judgment. General Walthall, who was intimately ac- 
quainted with Major Barksdale, says : 

" More than any man I ever knew, his conduct was regulated 
by his head, and less by impulse or passion, but the proportions 
of his character and intellect were so harmoniously adjusted that 
he could have had no safer guide. For his judgment was dis- 
passionate, neither colored by fancy or sentiment, nor distorted 
by prejudice impervious to reason. His sense of duty was high 
and pure, and his convictions of right and wrong were clear and 
well-defined. His standard of justice was exact, his sense of 
honor elevated, and his courage calm and fearless. Therefore, 
both as concerned himself and those he dealt with, he could have 
had no more unerring director of his course than his philosophic 
mind, supported by his sound morality." 

Major Barksdale was fond of the labors of his profession 
His industry was systematic and unremitting, and he was assidu- 
ous in his searches for the solution of every question which pre- 
sented itself in his practice. He was consequently deeply 
learned for one of his age and experience, and had his life been 
prolonged, he would doubtlessly have become one of the most 
profound lawyers of his time. 

While he was too much devoted to the duties of his profession 
to dally in the lap of society, he was full of charity and neigh- 
borly kindness, and his friendships, though slowly and cautiously 
formed, were maintained with a knightly faith and growing 
warmth. He "was true to evei-y conception of duty, faithful and 




^ng?t)"Augiistus RoTjm -■ 



HARVEY W. WALTER. 487 

frank to his clients, and maintained toward the court and his 
brother members of the bar an honorable dealino; and a bearine: 
of uniform courtesy and propriety. 

He was ambitious of applause and popularity, but it was 
" that popularity which follows, and not that which is run after. ' ' 
He scorned a baseless reputation, and sought to lay a solid 
foundation for the eminence which he strived to achieve — an 
eminence founded in the solidity of his own proven worth, and 
evected pari passti with his own development. Hence he was 
an earnest and self-reliant man, devoted to the true, the real, 
and the practical ; upon these he built his hopes, and upou 
these rested his title to the high character he enjoyed as citizen, 
soldier, lawyer, and 2:>ublic servant. 



HARYEY W. WALTER. 

In all human existence there is no blending of virtues so rare 
and admirable as that which characterizes the true philanthro- 
pist : which ehminates all idea of self from human actions, and 
devotes an individual to the service and welfare of his fellow- 
creatures. Such was the character of the SavioTir of mankind, 
and we may only look for such along the path in which he trod 
— among those who, like the subject of this sketch, have imbibed 
his spirit and follow his teachings, which enjoin that '' greater 
love than this hath no man, to lay down his life for his 
friends." 

Harvey Washington Walter was born in Fairfield County, 
Ohio, on the 21st of May, 1819, while his j^arents, who 
were natives of Virginia, were temporarily residing in that 
State, and at an early age removed with them to Kalamazoo, in 
Michigan, where they settled and lived to a venerable age.. 
They were noted and highly respected for their noble and gen- 
erous quahties, and it was from this source that Mr. Walter 
imbibed in his earliest youth that noble spirit which adorned his 



488 BENCH AND BAR OF MISSISSIPPI. 

character, and stamped his life upon the pages of virtue and of 
fame. 

Dui'ing his early years his father enjoyed the possession of 
wealth, and afforded his son every advantage ; but having sud- 
denly lost the greater portion of his property by an unfortunate 
investment, he could no longer render him assistance, and at 
the tender age of fourteen years young Walter found his fate 
depending upon his own resources. But buoyed by his genius 
and ambition, and supported by the stalf of a virtuous resolution, 
he stepped upon the journey of life ; and while no glittering 
prospects charmed his view, his destiny was haloed with the de- 
vout benisons of a father's blessing and the hallowed guerdon 
of a mother's prayers. 

These were his only patrimony. 'With these he went forth, 
and his energy and determination soon cleared away the un- 
toward circumstances that clustered along his youthful pathway. 
He alternately taught and attended school, and by this means 
obtained a collegiate education. Having completed his course 
in college, and seeking now for a propitious field for his future 
labors, he turned his eyes towards the South, as if impelled by 
those warm and generous feelings which sought the accord and 
mutuality always vouchsafed by that people with whom his lot 
was destined to be cast. About the year 1838 he joined the 
throng of emigrants who were pressing into the beautiful coun- 
try which had been recently acquired from the Indians in North 
Mississippi, and having determined upon the profession of law, 
he taught school two years at Salem, in Tippah County, as a 
means of support while preparing himself for the bar. 

In 181:0 he obtained his license and located in Holly Springs, 
where every prospect which energy, integrity, and talent could 
engender in a fruitful field smiled immediately upon his career. 
He soon took his position in the front rank of his profession, and 
achieved pre-eminence at a bar which was scarcely excelled by 
any in the South. His splendid talents and indomitable energy 
were kindled and fueled by the able competition amid which he 
bep-an his forensic career, and the blaze of his eminence con- 
tinued in the ascendant. Plis ability extended in every direc- 
tion of usefulness, and his name became associated with every 



HAKYEY W. WALTER. 489 

enterprise for the advancement of the interest of his connty and 
for the promotion of the honor and welfare of Mississippi. 

It was mainly through his exertions that the Mississippi Cen- 
tral Railroad was projected and pushed to completion — an enter- 
prise which he foresaw to be necessary to the development of 
the resources of his section of the State, and to the accomplish- 
ment of which he devoted his energy and means liberally and 
unweariedly. 

Mr. Walter was an ardent friend to the interest of education. 
He took great pride in the prospects of the University of Mis- 
sissippi, and was at the time of his death one of its trustees. 
Refined and elevated in his sentiments, temperate in his habits, 
and lofty in his aspirations, he was a devoted Christian and the 
patron of every moral and religious promotion. He was long a 
conspicuous member of the Masonic fraternity, and after having 
presided over its various subordinate bodies, was, in 1844, made 
Grand Master of the State Lodge. He was a Mason not only 
in the mere superficialities of the order, but in heart, in prac- 
tice, and in all the walks of life. 

Mr. Walter was intensely Southern in his principles, yet as a 
Whig he opposed the doctrines of secession until he considered 
that measure an inexorable alternative to the dishonor and po- 
litical degradation of his people, and then he was ready, as he 
M-as in everything that engaged his sympathies, to sacrifice what- 
ever its promotion might demand. He was a member of the 
Mississippi Secession Convention, and served with great ability 
upon the Committee on Federal Relations, No sooner had the 
tocsin of war sounded than he girded himself for the struggle, 
and as lieutenant of a company of infantry responded to the 
first call of his State for troops, in 1861. He was ordered to 
Pensacola, and soon after reaching thei-e was transferred to the 
staff of General Bragg as Judge Advocate, and served in that 
position with distinguished efliciency until the close of the 
war. 

Colonel Walter accepted the conclusion of the conflict with 

the same conscientious and abiding faith with wliich he had 

drawn his sword, and returning to Holly Springs resumed the 

practice of his profession, counselled a conservative and dignified 

31 



490 BENCH AND BAK OF MISSISSIPPI. 

policy, and devoted himself -to the amelioration of the rigorous 
circumstances of his people. 

As a lawyer he was well read and profound. His comprehen- 
sion was ready and acute, the succession of his thoughts was 
closely logical, and his argumentative powers clear, vigorous, and 
incisive. The versatility of his legal genius was remarkable, 
and he seemed to be equally qualified for eminence in either 
branch of the profession, and his high sense of duty and devo- 
tion to the interest of his clients engaged on all occasions his 
utmost powers. That distinguished jurist, Hon. A. M. Clay- 
ton, speaking of Colonel Walter, says : " He possessed in an 
eminent degree the two most requisite characteristics of a law- 
yer — patience and perseverance. He saw his end clearly, and 
never grew tired in pursuing it. He never saw but one side of 
a case, and that was his own. He overlooked all obstacles that 
:stood in his way, and drove on to liis conclusions regardless of 
their presence, and if not always successful, he always presented 
the strongest and most favorable view of his case." 

His legal learning and powers of analysis are amply exhibited 
in his briefs in the Reports of the Supreme Court. These are 
too well known to the profession to require more than a passing 
reference. His knowledge was ever at his command, and he 
was never at a loss for replication or retort. 

His stores of precedent w^ere comprehensive, and which the 
quickness and alertness of his memory and mental operations 
enabled him to call to his support in every emergency. He 
was a clear reasoner, an eloquent speaker, and possessed a mes- 
meric influence over the minds of juries. 

As a citizen Colonel Walter had no superior in his sphere of 
neighborly usefulness. While he was conspicuous in every 
public assembly, he was the centre of the social circle, and the 
welcomed and honored guest of every private entertainment. 
Generous and magnanimous in principle, he was courteous and 
affable to all classes, and his opinion was deemed tlie criterion of 
propriety and expediency. 

But the crowning gem in his chaplet of exalted virtues was 
the jewel of charity, whicli, sparkled more brilliantly than that 
which blazed in Diomede's crest or flamed in the imagination of 



HAEVEY W. WALTER. 491 

the alchemist. He had always been noted as a man of good 
deeds ; but it was when that besom of death, with its " woe-de- 
ligliting train — the ministers of grief and pain," swept over his 
devoted town, in 1878, that this divine quahty of his nature was 
exemplified with more than mortal glare. When the neighbor- 
ing town of Grenada had fallen into the arms of the inexorable 
fiend, and its shrieks reached the gates of Holly Springs, they 
were thrown wide open to its flying, homeless people, and Colo- 
nel Walter was mainly the author of the deed. He opposed all 
quarantine regulations, and opened his heart, his hands, and his 
house to the terror-stricken refugees, and when the fatal malady, 
lurking in the clothes of the strangers, reached forth and seized 
upon his own people, he counselled and urged them all to flee 
for their lives ; but, said he, " As for me and my sons, we can- 
not go ; we must fight this foe ; we must succor our people and 
administer to the sick, the dying, and the dead. ' ' Colonel Wal- 
ter's family was a remarkably interesting one. He was married, 
in 1849, to Miss Fredonia M. Brown, daughter of Colonel James 
Brown, of Oxford, a lady of rare accomplishments and of an 
exceedingly amiable character. From this marriage were born 
ten children, nine of whom lived until the visitation of the 
scourge. He had promptly, at the outbreak of the fever, sent 
his family away, except his three sons, who partook of the heroic 
spirit of their father and shared his glorious death. 

While in the midst of his charitable labors. Colonel Walter was 
himself stricken down, on the 19th day of September, 1879, and 
his three sons followed him within the same week. These noble 
young men had but recently graduated with distinction at the 
university of the State, and Frank was a law partner of his father, 
while A vent and Jimmie were studying for the profession in his 
office. When Frank, the oldest, was advised to leave, in the 
beginning of the plague, he replied, " Xo, I cannot go ; and 
if Idle, let my epitaph be written in the one word — Duty." It 
is said that it had always been his wish to be a great lawyer, 
lead a blameless life, and that his death might be crowned with 
some glorious act. On the fatal morning when he was stricken, 
before retiring to his home to die, he went in person and select- 
ed his burial-casket, observing that as he had lived as a gentle- 



492 BENCH AND BAE OF MISSISSIPPI. 

man, lie wished to be buried as one ; and ere the next day's sun 
the young man was laid away, Jimmie, who was acting as 
postmaster of the city of the dead, died on the same day, pray- 
ing that his life might be spared for the sake of his mother and 
little sisters. Avent, who had fallen a few days before, went 
away rejoicing at the thought of meeting his mother, his father, 
and his brothers and sisters in heaven. The pious death of this 
young man would furnish a theme for a sermon that would echo 
against the walls of eternity. 

Thus perished this noble family, while standing in the breach, 
while endeavoring to ward from others the shafts more fatal 
than the arrows of Apollo that twanged their fatal whiz through 
the Grecian camps on the plains of Troy. Amid all these scenes 
of terror, when the eyes of Heaven seemed averted from the 
doomed people. Colonel Walter still bowed to the will of his 
Maker. On one occasion a young wife who had just lost her 
husband, and who now saw other members of her family dying, 
half crazed with grief, wandered through the streets in despera- 
tion at her calamities. Colonel Walter met her and endeavored 
to comfort and soothe her agonizing distress, but in the bitter- 
ness of her grief she cried out against the justice of God. His 
eloquent and only reply was to reverently uncover his gray head, 
and glancing upward, exclaim, " Though he slay me, yet will I 
trust him. ' ' 

No nobler martyrdom was ever recorded upon the pages of 
history or hallowed the memory of mortal than that which 
crowned the death of this good man and his three noble and 
promising sons ; but they have their reward. Let them sleep. 

Rest, honored ones, rest from your toil, 
Beneath your own dear Southern soil. 
With those you died for take your rest ; 
Sleep on now with our loved and blest, 
Sleep till the just Almighty One 
Pronounce on you the sweet " Well done." 



CHAPTER XIII. 



THE CONVENTION OF 1861— THE CONSTITUTION OF 
1868— THE PRESENT STATE OF MISSISSIPPI JUPtlS- 
PRUDENCE. 

THE BAR EMINENT LIVING LAWYERS WHO ARE MORE THAN THREE- 
SCORE AND TEN YEARS OLD SAMUEL J. GHOLSON ALEXANDER M. 

CLAYTON ALEXANDER H. HANDY JAMES M. HOWRY J. F. H. 

CLAIBORNE.* 

The Convention of 1861, which withdrew Mississippi from 
the Federal Union, made no changes in its organic law. The 
Constitution of 1832 was readopted, with the addition of the 
following amendment : 

" Be it ordained and declared, and it is hereby ordained and 
declared, That the Legislature sliall have power to fix the time 
of holding all elections, and may adjust the terms of office to 
conform to any changes hereafter to be made, and may fix the 
time for the commencement of its biennial sessions. 

' ' Be it ordained and declared, arid it is hereby ordained and 
declared, That if any part of the present Constitution of the 
State of Mississipj)i shall be in conflict with any ordinance 
passed by this Convention, such part of the said Constitution 
shall be held to be abrogated and annulled to the extent of such 
conflict, but no further." 

These ordinances, however, contained nothing materially 
repugnant to the existing Constitution, save the altered status 

* It is to be regretted that the Honorable John W. C. Watson failed to 
respond to the solicitations of the author in regard to data fcr his biog- 
raphy ; for his standing for many years at the bar of Mississippi surely 
entitles him to a prominent place in the annals of its eminence. 



494 BENCH AND BAR OF MISSISSIPPI. 

of its political allegiance and the adoption of the Confederate 
Constitution as the supreme law of the State ; and the courts 
having fallen almost into disuse during the period of the war, 
no improvement was ingrafted upon the judicial system by 
legislative enactment. 

But the Constitution of 1868 remodelled the entire judiciary 
of the State, broke up the very fountains of its established order 
of society, and instituted the era of a new political polity. The 
High Court of Errors and Appeals, with its elective judiciary, 
was abolished, and a Supreme Court, consisting of three judges 
appointed by the Governor, subject to the confirmation of the 
Senate, was established and clothed with such jurisdiction only 
as properly belongs to a supreme court. The circuit benches 
were also required to be filled by appointment, and a separate 
chancery court was established in each county, with full juris- 
diction in all matters ia equity and such as pertain to a court of 
chancery. For this purpose the State was required to be 
divided into districts composed of not more than four counties, 
and the chancellors were made appointable in the same manner 
as the circuit judges and the judges of the Supreme Court ; and 
it authorized the Legislature to select such partisan papers as it 
might see proper in the several counties as official journals. It 
established the office of lieutenant-governor, who should by vir- 
tue of his office be the Speaker of the Senate ; also a commis- 
ioner of emigration and agriculture, who should be elected by 
the Legislature on joint ballot, and substituted a county board 
of supervisors for the old board of police. 

It inaugurated a comprehensive system of public schools, and 
provided for the appointment of a State superintendent of edu- 
cation, who, with the Secretary of State and Attorney-General, 
should form a Board of Education for the management and in- 
vestment of the school funds under the direction of the Legisla- 
ture. It also provided for a superintendent to be appointed for 
each county by the State board, but that office might be made 
elective by the Legislature. It provided for the establishment of 
an agricultural college, and devoted to its endowment the two 
hundred and ten thousand acres of land donated to the State for 
educational purposes by the General Government. 



THE CONVENTION OF 1861. 495 

It enfrancliised all competent citiziens of the United States 
wlio shall have resided six months in the State and two months 
in the county of their suflErage, and required an oath of the 
electors to support and obey the Constitution and laws of the 
Lfnited States, and of Mississippi, and aflfixed a clause that no 
amendment made prior to the year one thousand eight hundred 
and eighty-five should require a property or educational qualifi- 
cation for any person to become an elector. It prohibited the 
uttering of private notes and bills as money, and restrained the 
State from participating in the stock of corporations, and from 
lending its credit to any private enterprise. 

The Revised Code adopted at the session of 1880, and which 
took effect in November, contains many important changes 
and decided improvements in the judicial practice of the State. 
It has abolished the troublesome " writ of error," and provides 
that causes shall be taken to the Supreme Court only by appeal, 
and which shall not fail in consequence of any irregularity, if 
the appellant will perfect his appeal as may be required by the 
Supreme Court. 

Dower and courtesy are abolished, and husband and wife in- 
herit respectively from each other, taking a child's part if there 
are children, and the whole estate if there are no children by 
any marriage. 

Married women are completely emancipated from all common- 
law disabilities as to their separate property, and they may deal 
with it and bind themselves personally as if unmarried, and hus- 
band and wife may sue each other. The women are free from 
every legal restraint except the bonds of matrimony. 

Private seals are abolished, and neither their presence or 
absence affects any instrument either as to rights or remedies. 
Defect of religious belief does not render one incompetent as a 
witness. 

Persons charged with crime may testify in their own behalf 
in all cases in which the prosecutor is made a witness, or in 
which the admissions or confessions of the accused are intro- 
duced as evidence. 

With these decidedly improved features, and with the excep- 
lion of a few anomalous provisions in its Constitution placed 



496 BENCH AIsD BAK OF MISSISSIPPI. 

tliere for partisan purposes, and not by the hand of her people, 
the jurisprudence of Mississippi is, perhaps, as perfect and ele- 
vated as could be devised by the wisdom of men, while its bar 
still partakes of that eminence which has so gloriously character- 
ized it from the first establishment of the State courts. While 
the past holds out its beckoning visions of glory, the present 
lires with its living examples the heart of the rising generation, 
and presents to the gaze of ambition a personification of the 
brightest memories of other days — days to which these men 
really belong, but whose spans of life the mercies of a benign 
Providence have lengthened out and left as the last unextin- 
guished beacons of past greatness — as living landmarks in the 
track of fame. 

In presenting the sketches of the eminent li ving gentlemen of 
the Mississippi bar who are more than threescore and ten 
years of age, the author will, as far as possible, refrain from 
laudatory observations upon their private character, however 
much it may be merited, for the reason that he deems it im- 
proper, and that it would no doubt be distasteful to the distin- 
guished gentlemen themselves. 



SAMUEL J. GHOLSON. 497 



SAMUEL J. GIIOLSON". 

Samuel Jonathan Gholson was born in Madison County, Ken- 
tucky, on the 19th of May, 1808, but emigrated in 1817, with 
his father's family, to the northern part of Alabama, where his 
youth was passed. His early education was very limited, being 
such only as he coull obtain from the common country schools 
of that period ; but he possessed a remarkable energy and an 
ambition whicli knew no goal but success, and on arriving at the 
age of manhood he studied law in Russellville, Alabama, under 
the guidance of Judge Peter Martin. Li 1819 he was licensed ^ 
to practice by the Supreme Court of his adopted State, and in 
1830 removed to Mississippi and located as a lawyer at Athens, 
in Monroe County, where he was married, in 1838, to Miss Rags- 
dale, a lady consjiicuous for her virtues. 

In 1833 he was elected to the Legislature of Mississippi, and 
was continued a member of that body by re-election until 1836, 
when he was chosen to a seat in the United States House of 
Representatives, at a special election held by order of the Gov- 
ernor, to fill a vacancy in the Mississippi delegation occasioned 
by the death of General David Dickson, and was returned for a 
full term at the regular election in 1837. This latter election 
was contested by his Whig opponent, Mr. Word, in connection 
with Mr. Prentiss, who at the same time contested that of Colo- 
nel J. F. H. Claiborne, the circumstances of which are j)re- 
sented in the sketch of the last-named gentleman. 

The career of Mr. Gholson in Congress was marked with 
vigor and fidelity. He was vigilant and bold in the defence of 
•the interest of his section, and in the advocacy of the principles 
of his party, and came repeatedly in conflict with Hon. Henry 
A. Wise, of Virginia, who, supported by Mr. Bailie Peyton, of 
Tennessee, both professed fireeaters, sought to play the role of 
Mr. Randolph in the House, and not unfrequently attempted to 
sneer down or intimidate their opponents. 



498 BENCH AND BAE OF MISSISSIPPI. 

On one occasion, after some rather rough and cutting remarks 
made by Mr. Gholson, Mr. Wise rose, and pointing to him, said, 
"If impudence and ignorance constitute a blackguard, there 
.stands one/'' Mr. Gholson made a scathing reply, and " coffee 
and pistols for two" was on the tapis, but by the powerful in- 
liuence of Mr. Calhoun and other mutual friends, a duel was 
prev^ented, though the two gentlemen never spoke to each other 
afterwards. 

In 1838 Mr. Gholson was appointed by Mr. Van Buren to 
the judgeship of the United States District Court for the State of 
Mississippi, and retained his seat on that bench until the out- 
break of the civil war in 1861. While occupying this posi- 
tion an incident occurred which strikingly illustrated the pa- 
triotic character of the man. When Governor Quitman was 
arrested by the United States authorities, charged with com- 
plicity in the expedition of Lopez, he was brought before 
Judge Gholson, who was then holding his court at Jackson, to 
give bail for his appearance before the District Court at New 
Orleans, the alleged locus criminis, to answer to the indict- 
ment ; but when the Governor appeared at the bar of the court 
Judge Gholson ordered him to be released simply upon his 
promise to appear and answer. He could not consent to require 
of the Governor of his State any other recognizance than his 
word of honor. But no stronger obligation could have been 
exacted from John A. Quitman. 

Judge Gholson, having resigned his position, was elected a 
member of the Mississippi Secession Convention, and partici- 
pated actively in the proceedings of that body. When the war 
began he joined as a private one of the first companies raised in 
his county, and was afterwards chosen its captain. He was 
wounded through his right lung at the siege of Fort Donelson, 
and his company having been captured at the fall of that place, 
he raised another and took the field under General Sterling 
Price, participating in the battles of luka and Corinth, and in 
the latter engagement was badly wounded through his left thigh. 
In the spring of 1863 he was appointed Major-Geueral of 
Mississippi State troops, and was placed in charge of the pro- 
tection of the railroads of the State against sudden incursions. 



SAMUEL J. GHOLSON. 499 

In 1864 he received two serious wounds in an engagement with 
Denver near Jackson, and on the 27th of December of the 
same year received a wound in the fight with Grierson's com- 
mand, at Egypt, Mississippi, which caused him to lose his left arm. 
Why Judge Gholson was not appointed to the bench of the 
Confederate District Court for Mississippi is somewhat inexpli- 
cable. It is, indeed, strange that he should have been permitted 
to descend from a bench which he had so long and so worthily 
occupied, and, at his age, muster himself into the ranks as a pri- 
vate soldier. He had been a hfelong friend of Mr. Davis, per- 
sonally, politically, and officially ; and the neglect was not in 
conformity with the known constancy and rewarding policy of 
the Confederate President. It may have been, however, that 
this position being necessarily of a sinecure nature during the 
existence of the war, Mr. Davis, knowing his fiery ardor, de- 
sired the military services of Judge Gholson, and which he in- 
tended, in time, to properly recognize liad not the latter been so 
disabled by wound? which he received at the outset. Bat, be 
this as it may, no complaint escaped the lips of Judge Gholson. 
He did not halt to inquire about political ethics or the measure 
of his own deserts, but sought only the efficiency of action, and 
desired only that capacity in which he could best serve the in- 
terest of his country. 

At the termination of the war General Gholson resumed the 
practice of his profession ; but the people again demanded his 
services, and in 1866 he was elected to represent his county in 
the lower branch of the Legislature. In 1878 he was again 
elected to a seat in that body, and was chosen Speaker of the 

House. 

As a lawyer, as a legislator, as a judge, and as a soldier, the 
career of General Gholson has been brilliant and exemplary. 
His predominant traits are a sound judgment, an untarnishable 
integrity, and an indomitable resolution. His perception is ac- 
tive and penetrating, and his analytical and synthetical powers 
constitute him a dialectician of the first order. As an orator his 
style is plain, logical, and terse. He is a profound lawyer, and 
loves his profession with the fervor of a devotee. He is still 
practising in Aberdeen, with the vigor of much younger years. 



500 



BENCH A]J^D BAR OF MISSISSIPPI. 



With a constitution wliicli neither ball nor bomb nor blast 
could apparently shake, his mind has kept pace with his phys- 
ical vigor, and while old age has planted its tracks upon his 
brow, the weight of years seems to have no burden for his 
brain. Looking back with no regrets upon the past, he rejoices 
in the hopes which he has lived to see burst forth upon his 
country through the clouds which so long hung like a pall of 
darkness over it. His patriotism is as sacrificial as that of 
Regulus, QB promjit aB that of Cincinnatus, as faithful as that of 
Franklin, and as ardent as that of Washington ; and when the 
great key-note of time shall sound the requiem of this grand old 
man, none will go up before the great High Court with a 
brighter record of all that constitutes the upright judge, the 
faithful counsellor, the useful citizen, the true friend, and the 
honest man. 



ALEXANDER M. CLAYTON. 

Among the distinguished gentlemen whose talents have 
adorned the bench and bar of Mississippi, there is no one whose 
career is more conspicuously identified with its jurisprudence 
than the venerable gentleman whose name introduces this 
memoir. 

Alexander M. Clayton was born in Campbell County, Vir- 
ginia, on the 15th of January, 1801. His opportunities for ob- 
taining an education were confined to the ordinary schools of 
the country ; but possessing an innate vigor of high resolve, and 
actuated by a spirit of lofty purpose, on arriving at his ma- 
jority he entered a law office in the town of Fredericksburg, and 
after a diligent preparation was admitted to the bar in 1823. 
He then located himself and commenced practice at Louisa 
Court-House, where, in 1826, he married Miss Thomas, a lady 
of culture and refinement, and a descendant from ancestors of 
Revolutionary repute. His early professional prospects were 
flattering, but the lucubrationes of a young lawyer at the bar of 




^y/t^^. ^. .^^^^^ 



ALEXANDER M. CLAYTOIS'. 503 

Virginia at that period were defined by an arbitrary custom, and 
often painfully prolonged ; and chafing under restraints Avhicli 
prevented tlie immediate and full development of his talents, 
Mr. Clayton sought a more ample and less ceremonious field, 
and removed to Tennessee and settled at the flourishing town 
of Clarksville. Here he met many distinguished lawyers, such 
as lion. Cave Johnson, Judge Wilham Brown, Judge William 
Turley, and others, by whom the talents of the young Virginian 
Avere immediately recognized, and they gave him a kindly and 
friendly reception. He had been but a short time in Chirks- 
ville before he was employed in some of the most important 
cases at that bar, and established a reputation which placed him 
in the first rank of his profession. He then formed a copartner- 
ship with Mr. Turley, which continued as one of the leading law 
firms in that portion of Tennessee until the latter was elevated 
to the bench. But in the midst of his professional triumphs 
Mr. Clayton met, in 1 832, with the greatest of reverses in the 
loss of the devoted wife who had espoused his early fortunes, 
encouraged • his youthful hopes, and inspired his professional 
ambition. This event was a severe shock to his sensitive and 
affectionate nature, and seemed for a time to unsettle his plans, 
to mar his hopes, and to cast a settled gloom over all his pros- 
pects. But, fortunately, a circumstance intervened which jDrom- 
ised some relief to his mind aiid drew him away from the scenes 
of his sorrow. He was appointed by Genei'al Jackson, then 
President of the United States, to the position of United States 
Judge for the Territory of Arkansas. He held this oftice, how- 
ever, for only one year, and then resigned and returned to 
Clarksville. While in Arkansas he had occasion to visit the 
country bordering on the Mississippi River, where the cholera 
was then raging with fatal malignity, and having contracted 
this terrible disease in its most virulent form, his constitution 
was prostrated to such a degree as to indicate a settled infirmity 
fatal to the performance of his professional duties. But after a 
protracted state of phj'sical debility the healthful breezes and 
inspiring scenes of his early triumphs restored his health, and 
now catching the enticing reports of the exceeding fertility, 
the scenic beauty, and flushed prospects of the country which 



504 BENCH AND BAK OF MISSISSIPPI. 

had been lately ceded to the United States by the Chickasaw 
and Choctaw Indians in Northern Mississippi, he removed to this 
State in 1837, and settled on a plantation near the present village 
of Lamar, in Mai^shall County. His agricultural operations were 
successful. The forests, which had never echoed but to the 
whoop of the Indian, were soon felled by the slaves which he 
brought with hini from Tennessee, and bountiful crops were the 
reward of his judgment and enterprise. He, in the mean time, 
however, relaxed none of his energy and devotion in the pursuit 
of his profession. He found in this State a vast field of litiga- 
tion, and entered immediately upon a lucrative and growing 
practice. The loose system of banking establishments, their 
numerous failures, and the efforts made to fix liability on the 
individual members of these corporations, have already been re- 
ferred to in this work as fruitful sources of litigation at that 
period in Mississippi. 

In 1842 Mr. Clayton was elected to the bench of the High 
Court of Errors and Appeals to fill a vacancy occasioned by the 
resignation of Mr. Justice Trotter, and in 1844 was re-elected 
for a full term. His decisions are remarkable for profound 
learning, and for the many novel and important principles 
which they established in our jurisprudence. They are always 
clear and penetrating, embrace every hinging feature, and pre- 
sent a lucid exposition of every point necessary to disclose clearly 
the rights of the parties and the equity involved in the dispute. 

Whilst upon the bench of the High Court, Judge Clayton de- 
livered a series of opinions involving the question of the limita- 
tion of estates in our jurisprudence. These o])inions, which met 
with the concurrence of the other judges, inculcated the doctrine 
that the Mississippi Statutes had so far modified the common 
law as, of themselves, to furnish rules amply sufficient to de- 
termine all questions of that character without recurrence to the 
artificial and technical principles of the English law. 

And notwithstanding that, after his retirement from that 
bench, the High Court in the case of Jordan vs. Roach over- 
threw the doctrine which Judge Clayton had laid down, the new 
Code of Mississippi, 1880, by formally abolishing the rule in 
Shelley's case, and adopting provisions in supj^ort of his doctrine. 



ALEXANDER M. CLAYTON. 505 

confirms the wisdom of his efforts to emancipate our juris- 
prudence from such antiquated technicahties. 

A striking parallel between his manner of treating a question 
and that of Judge Sharkej is presented in their separate opin- 
ions in the case of Montgomery et at. vs. Ives et al. (13 S. & 
M. ,161). Their conclusions in this case are identical, but 
reached upon grounds somewhat different, and which involve a 
conflict in the legal construction of historic data. 

Judge Clayton's term upon the High Bench expired in 1851, 
and he was a candidate for re-election ; but as he had taken 
strong grounds for the doctrines of the States Rights party a 
short time before in the Nashville Convention, and in the Mis- 
sissippi Compromise Convention, held in the early part of 1851, 
as well as during the canvass, in which an address which he 
published to the people constituted mainly the platform of the 
campaign, he shared the defeat of his party and returned to a 
vigorous practice of his profession, in copartnership with Hon. 
J. "W. C. Watson, of Holly Springs. 

On the election of Mr. Pierce to the Presidency he tendered 
to Judge Clayton, without solicitation on his part, the position 
of consul to Havana. This oftice he accepted, and repaired to 
the island of Cuba. At that time there was considerable ex- 
citement in the Southern States, caused by a report raised, no 
doubt by filibusters, that a treaty had been formed between 
France, England, and Spain for the purpose of " Africanizing 
Cuba." 

Judge Clayton received instructions to investigate the matter 
and ascertain the truth as to the existence of such a treaty, and 
he entered zealously upon that duty. Having availed himself 
of every source and means of information, he became satisfied 
that the alarm was false, and his report to his government to that 
effect calmed all apprehension in regard to it, and the strict 
enforcement of the neutrality laws during his residence in the 
island put an end to the projects of the filibusters. It was not 
long, however, before the failure of his health and uncongeni- 
ality of the situation caused him to resign and return to his 
home in Mississippi. But being attracted by the rapid growtJi 
and commercial prosperity of Memphis, he soon after removed 



506 BEN^CH A^D BAE OF MISSISSIPPI. 

to that city and formed a copartnership with Judge Archibald 
Wright and D. M. Currin. 

This firm enjoyed a large patronage ; but Judge Clayton had 
not been long in Memphis before the unmistakable omens 
which began to flit across the political skies stirred his patriotic 
anxieties. He was a member of the Charleston Convention, and 
of that subsequently held at Baltimore, and when he saw the 
dark shadows of the approaching storm gathering along the hor- 
izon he stepped boldly into the arena of action. He returned to 
Mississippi, and in 1861 was chosen a delegate from Marshall 
County to the convention which withdrew Mississippi from the 
Federal Union. 

In this body, as chairman of the committee appointed for that 
purpose, he presented an able address setting forth a declaration 
of the immediate causes which induced and justified the seces- 
sion of the State of Mississippi from the Federal Union. He 
was also chosen one of the seven delegates to the Montgomery 
Convention, and was subsequently ordained to a seat in the Pro- 
visional Congress of the Confederate States. His services dur- 
ing this period were of marked efficiency. His great legal 
learning, calm and conservative judgment, and unswerving 
fidelity to the interest of his people, rendered his counsel at 
once weighty and influential. 

When the Confederate Government was inaugurated Judge 
Clayton was appointed to the bench of the Confederate District 
Court for Mississippi, and held that position until the close of the 
war. There was during this period, of course, but little civil 
business before his court, and only one point of a general in- 
terest in the laws of war was decided by him, which was, that 
where the Government was powerless to protect, it had no power 
to punish. 

After the close of the war he was appointed, on the death of 
Judge Trotter, to a seat on the circuit bench, and was elected 
afterwards for a full term, but was removed by Governor Ames 
in consequence of his inability to take what was called the u'on- 
clad oath. 

He has always taken great interest in the cause of education 
and in all public enterprises. He was made a trustee of the 



ALEXANDER M. CLAYTON. 507 

State University upon the establisliment of that institution, and 
still maintains that relationship. He was also a chief promoter 
of the construction of the Mississippi Central Railroad, and was 
for several years one of its directors. 

His legal attainments are comprehensive and profound, and as 
a constitutional lawyer his abilities are pre-eminent. 

Judge Clayton has always been a devotee of the pure and 
fundamental principles of the American Constitution, and in his 
legal eye the decision of the United States Supreme Court in 
the Dred Scott case M^as a just and true vindication of Southern 
rights, and triumphantly repellant of the assaults of Northern 
fanaticism ; but when he saw the doctrines laid down in that 
case rejected, the courts contemned, and the Constitution itself 
repudiated, he saw no remedy for the South but in secession. 
He maintained the spirit of constitutional law with great ability 
and fervor, but the wisdom and experience of Nestor could 
not avert the disastrous results of the quarrel of Achilles and 
Agamemnon, and Judge Clayton retired from the scene amid 
the wreck and ruin of his country ; but now, in the eightietli 
year of his age, he has lived to see the smouldering ashes cleared 
away, the past, save the remembrance of its grandeur, fast sink- 
ing into oblivion, and his country putting on the robes of a new 
prosperity, rising 

Like Thebes, or some razed city, from its tomb 
In beauty, as if never marred by shot or bomb. 

And looking back through the checkered vista of fourscore 
years, he has seen the blossom and the fruit of its greatness, and 
the destruction of all save those eternal principles which reside 
only in the mind of integrity and the heart of the patriot. 

In 18Y9 he lost his second wife, with whom he had lived in 
the warmest affection and in the bonds of unbroken harmony 
for more than forty years, who was to him a true and devoted 
friend. 

He now resides at his home near the village of Lamar, in Ben- 
ton County. Mississippi, in quiet seclusion, having withdrawn 
from all public affairs, and if the good wishes of his country and 
the esteem of his fellow-citizens can soften the bed of death, his 
last rest will be upon a couch of down. 



508 BENCH AND BAR OF MISSISSIPPI. 



ALEXANDER H. HANDY. 

The subject of tins sketch was born in Somerset County, 
Maryland, on the 25tli of December, 1809. He was well 
educated, and, having obtained his license as a lawyer, removed 
to Mississippi in the year 1836. In January, 1837, he was ad- 
mitted to the bar of the High Court of Errors and Appeals, 
and. entered at once upon a most successful professional career. 

In 1853 he was elected to a seat upon the bench of the High 
Court over Judge William Yerger, who was then upon the 
bench, but who had rendered himself unpopular with the 
dominant party in consequence of his opinion in the case of 
Johnston vs. The State, in which he maintained the liability of 
the State for the payment of the bonds of the Union Bank. 
Judge Handy held this office until October, 1860, and was then 
re-elected without opposition. 

In 1865 he was again elected a judge of the High Court over 
George L. Potter, and in January, 1866, was appointed Chief 
Justice of Mississippi. In November, 1866, he was re-elected 
without opposition, but resigned the position on the 1st day of 
October, 1867, by letter to the Governor, in consequence of the 
court's being placed by the Federal Government in subordina- 
tion to the military power of the United States. 

He then removed, to the city of Baltimore and resumed the 
practice of his profession, but was soon after appointed Profes- 
sor of Law in the University of Maryland, which position he 
held until 1871, when he returned to Mississippi and resumed 
the practice of law at Jackson, and in October, 1877, was ad- 
mitted to the bar of the Supreme Court of the United States. 

Judge Handy has always been a firm believer in the doctrine 
of States rights, is immovably Southern in his views, and fa- 
vored secession both as a riglit and a necessity. He was aj)- 
pointed by the Governor of Mississippi, in December 1860, 
as a commissioner to the State of Maryland in relation to 



ALEXANDEK H. HANDY. 509 

the political crisis then existing ; and failing in his efforts to 
communicate with the Legislature of that State, in consequence 
of the refusal of its Governor to convoke that body, Judge 
Handy addressed himself directly to the people, and in his 
speech delivered at Princess Anne, on the first day of January, 
1861, presented the subject of secession — its right and its reason — 
in a lucid and elaborate manner. He depicted, witli tlie ken of 
inspiration, the policy and purposes of the party about to take 
possession of the Federal Government, and showed that the 
principles announced by the President-elect and the leaders of 
his party were subversive of all equality in the Union, destruc- 
tive of the rights of the Southern people, and virtually a revolu- 
tion of the Government. But, although the people of Maryland 
were aroused by his presentment of the situation, they could do 
nothing in view of the action of the State Government. 

In 1862 'Judge Handy wrote and published a pamphlet 
entitled " Secession considered as a Eight in the States compos- 
ing the late American Union of States, and as to the Grounds of 
Justification of the Southern States in exercising the Right. " In 
this treatise he thoroughly and ably discussed the fundamental 
principles of the American Government, the conditions upon 
which it was created, and its interpretation by the authors of the 
Federalist. The work is a profound and instructive constitu- 
tional argument, which every lawyer should read who seeks a 
thorough knowledge of the history, character, and interpreta- 
tion of the Constitution of the United States. 

Judge Handy is a fluent speaker, a polished writer, and an 
interesting companion. The qualities which so eminently fitted 
him for a judge designated him for other marks of distinction, 
and in 1861 the title of LL.D. was tendered him by the 
faculty and trustees of the University of Mississippi, but his 
modesty impelled him to decline the honor ; and in 1867, on 
his resignation as a judge of the High Court, he was offered the 
position of Professor of Law in the same institution, but that was 
also declined. 

As a lawyer Judge Handy is learned and profound, and his 
leo-al learnino; is united to a character of unspotted integrity, 
and is blended with a purity which eminently fitted him for the 



510 BENCH AND BAR OF MISSISSIPPI. 

bench. As a judge, his "uniform urbanity, together with liis 
able and dignified manner of administering justice, excited the 
admiration of the bar. His decisions are searching and compre- 
hensive, clear and logical in enunciation, and exhaustive in 
their elucidation of the rights of the parties. His opinions 
are numerous, and enter largely into the composition of sixteen 
volumes of the Mississippi Reports, from vol. 26 to vol. 41, 
inclusive. 

They are characterized by an independence of thought and a 
self-reliance which bespeak the possession of resources rarely 
acquired, and a fertility of legal genius which only a clear and 
well-defined sense of right and wrong could inspire, and which 
only talents of the highest order could develop. 

These decisions cotistitute for his fame a far more splendid and 
enduring monument than all the pillars and shafts that mechan- 
ism could rear, and are records more glorious than* all the vol- 
umes of praise and adulation that history could produce. 
Through them his name is inscribed luminously and indelibly 
upon every title-deed, every tenure, and every relation of the 
society of Mississippi. 

Judge Handy now resides in Canton, Madison County, and is 
still engaged in the practice of his profession. 



JAMES M. HOWRY. 511 



JAMES M. HOWRY. 

James Moorman Howry was born in Botetourt County, Vir- 
ginia, on the 4th of August, 1804. His ancestors came from 
Europe prior to the American Revohition and settled in Vir- 
ginia and Pennsylvania. His father removed to Tennessee in 
December, 1811, and located near Rogersville, where the sub- 
ject of this sketch was reared and educated. His education, 
though not finished, was solidly moulded in a classical academy 
in that town, and was steadily enlarged by his studious habits 
and inquisitiveness of mind. 

He was an industrious and energetic boy, and he even now 
takes great delight in boasting of the thrifty and vigorous 
habits of his youth. At an early age he was placed in the 
mercantile house of Francis Dalzell, in Rogersville, where he 
acquired that capacity for business wliicli has characterized his 
life as one of great usefulness and activity. He was subse- 
quently employed, for several years, in the office of the chan- 
cery clerk of his county, where he obtained considerable know- 
ledge of the functions of equity, and imbibed a fondness for 
forensic proceedings and an ambition for legal distinction which 
finally induced him to launch into that sphere and decided the 
fortune of his life. 

But not yet supplied with sufficient means for his purposes, he 
conducted for several years a mercantile house for one Colonel 
George Hale, and during the latter part of this time devoted 
his spare hours to the study of law. He then entered the law 
office of Governor Peter Parsons, of Rogersville, and for two 
years applied himself diligently to a thorough preparation for 
his chosen profession. His studies were interrupted only by 
the ardor with which he embraced the martial rage excited by 
the war of 1812, and which had not yet subsided. He aban- 
doned the study of law and entered a military academy, and at 
the age of seventeen was elected first lieutenant of a company, 



512 BENCH AND BAE OF MISSISSIPPI. 

at the age of nineteen was made captain, at twentj-two a major, 
and then colonel commandant. 

Resuming the study of law, he obtained license and practiced 
one year at Rogersville, and then removed to Middle Tennessee, 
where he rose so rapidly in his j)rofes8ion that at the ensuing 
convention he lacked hut one vote of being nominated for Attor- 
ney-General of the twelfth Tennessee district, to which office he 
was afterwards appointed by Governor Carroll. He was for sev- 
eral years clerk of the House and Senate of the Teimessee 
Legislature, and during the performance of these duties the 
members of the bar at the courts in which he practiced volun- 
tarily attended to his cases. 

He removed to Mississippi in the year 1836, and located in 
Oxford, where he has since resided, and is now the oldest inhabi- 
tant of tliat place. He soon attained a large and lucrative prac- 
tice at the bar of his adopted State, and was one of the most suc- 
cessful lawyers of that period. 

In 1840 he became the Democratic candidate for the office of 
Circuit Judge, but the unpopularity of Mr. Yan Buren in North- 
ern Mississippi, whose cause he espoused in the canvass, pro- 
moted the election of Judge Iluling, who was a supporter of the 
hard-cider ticket. This election was held to till a vacancy, and 
in 1841, at the regular election. Colonel Howry was elected to 
the circuit bench for a full term, his opponents being Alexander 
M. Clayton and Judgp Iluling. His tirst court was to be held 
at Holly Springs, in December. His commission had been duly 
forwarded by Governor McNutt and entered upon the records 
of the court, and he had taken his oath of office. But in the 
mean time Judge Huling claimed that, notwithstanding the 
specialty of his election the jweceding year, he was entitled by 
its virtue to retain his seat during the full succeeding term, 
and when the day for holding the court at Holly Springs 
arrived he ascended the bench, it is said, before he had par- 
taken of his breakfast, and having secured the services and sup- 
port of a deputy sheriff of his political faith, caused him to pro- 
claim the court to be open. 

The clerk, who was a Howry man, refused to serve him, 
and in this posture he remained until ten o'clock, at which 



I 



JAMES M. HOWRY. 513 

lime Judge Howry made his appearance, the liigh sheriff opened 
tlie court, and the clerk seated himself at his desk. The court- 
house was filled with excited people, who were divided in tlieir 
sympathies. Judge Howry, pointing to Judge Huling, ordered 
the sheriff to take that man away. The sheriff replied that 
while he believed Judge Howry to be the rightful incumbent 
it was not a matter resting in the power of his decision, and re- 
fused to hurl Judge Huling from the bench ; and after fining 
each other alternately several times, the two judges adjourned 
respectively. Judge Howry until two o'clock in the afternoon, 
and Judge Huling until nine o'clock of the next morning. In 
the evening Judge Howry's court met, pursuant to the morn- 
ing's adjournment, and he adjourned again until half past 
eight o'clock of the next day, which placed his reoccupation of 
the bench a half hour in advance of his rival, and procured him 
relief from any further interruption. 

The Huling party then proposed that a case should be made 
up for the decision of the High Court, which was agreed upon 
and sent up under the style of Lemuel Smith vs. Half acre. The 
docket was then cleared by continuances, and the mutual consent 
of counsel to wait until tlie title to the judgeship should be de- 
cided. The case was called up before the High Court in Janu- 
ary, 1842, and was decided in favor of Judge Howry. 

Here I caimot refrain from noticing an event of a personal 
nature that occurred soon after he ascended the bench. 

In 1843 Judge Howry was holding court, by interchange 
with Judge Adams, at Athens, in Monroe County, and while 
sitting upon the trial of a negro for murder a fierce controversy 
arose between General Reuben Davis and Judge Frank Rogere 
in regard to the competency of a juror. The judge promptly 
decided the question, and took occasion to admonish the counsel 
of their wrangling ; and when Mr. Davis, in the yoiithful ardor 
of a fiery temperament, continued to pursue the quarrel with Mr. 
Rogers, the judge fined him fifty dollars, for which Mr. Davis 
attacked him in the hall as soon as the court was adjourned and 
demanded to know why he had been fined. The judge replied 
that he did not, out of court, give explanations of his action on 
the bench ; upon which Mr. Davis struck him a slight blow in 



514 BENCH AND BAR OF MISSISSIPPI. 

the face with his open liand. The judge, casting his eyes 
around, discovered a carpenter's hammer lying on a shelf near 
by, and, seizing it, gave his antagonist a blow that caused a 
severe rent across the crown of his head. Mr. Davis, in the 
mean time having drawn a small knife, was cutting vigorously 
at the judge's jugular, when they were separated, bleeding from 
mutual wounds whose marks they bear to this day. 

On the next morning Judge Howry informed the lawyers that 
he would hold court for them no longer, for the reason that 
some of them stood by and suffered a visiting judge to be put 
in jeopardy of his life, and by one of their own number. It was 
accordingly adjourned. 

General Davis, in speaking of this affair to the author, said, 
laughingly, that when his friend Howry failed to argue his 
notions of law into his head, he tried to hammer them in. The 
matter was, however, adjusted, and for thirty-seven years the 
two gentlemen have been fast and mutual friends, and many 
acts of kindness and friendship have passed between them. 

On the establishment of the University of Mississippi, in 1844, 
Judge Howry was appointed one of the trustees of that institu- 
tion, and his services on that board were acknowledged by his 
colleagues to be of the highest efficiency, and their records 
teem with resolutions and tributes to that effect. 

His energy and attentiveness in superintending the erection 
of the buildings, in putting the institution into operation, and 
his continued services in promoting its interest as chairman of 
the executive committee and afterwards as secretary and treas- 
urer of the board of trustees, are well known to the alumni and 
the country, and connect his name inseparably with the estab- 
lishment and fortunes of the institution. His connection with 
it continued until it fell with the State under the control of the 
Republican party, when the stanch Democracy of Judge Howry 
precluded his reappointment by Governor Alcorn, and he was 
forced, with his colleagues, to give place to henchmen of the 
Republican Governor. 

In 1857 he was nominated by a convention of the Demo- 
cratic party of his county, and elected to a seat in the State Sen- 
ate, in which he served two terms, and distinguished his legis- 



JAMES M. HOWRY. 515 

lative career by the zeal and ability witli which he advocated 
the interest of the university. 

He has always been an active promoter of all public enter- 
prises, and has devoted much of his time to the advancement of 
the interest of the town and county of his residence. Full of 
generosity, charity, and personal enterprise, he has been an 
active patron of every meritorious cause. 

His position in the Masonic fraternity is well known through- 
out both Tennessee and Mississippi, He presided for many 
years over the lodge and chapter, was Grand Master of Missis- 
sippi, and Grand High Priest of the chapter. 

The long career of this distinguished gentleman furnishes one 
continued and brilliant example of a lofty and well-directed am- 
bition, an incessant round of duty vigorously and conscientious- 
ly performed — a pathway paved with industry and enterprise, 
and glowing with beneficence and honor. 

As a lawyer Judge Howry is noted for his practical genius 
and accurate comprehension of fundamental principles. His 
knowledge of the law extends to a depth which can be attained 
only by the joint exercise of diligence, temperance, and talent ; 
and these qualities, joined to kindness of heart and gentility of 
manners, disclose the cause of his successful life. 

His strict attention to business, his stern integrity, and the 
faithful and ardent application of his time and talent to e\ery 
trust reposed in him by his fellow-citizens, gained for him their 
admiration and esteem— the highest earthly I'ewards that can be 
bestowed upon man ; and, laden with these, he has borne then», 
untarnished and undiminished, down to the hoary verge of four- 
score years. 



516 BENCH AND BAE OF MISSISSIPPI. 



J. F. H. CLAIBORNE. 

Wliile this distinguished gentleman was never a practitioner at 
the bar of Mississippi, he occupies a place so conspicuous in its 
political and literary annals that the omission of his biography 
would stamp the seal of incompleteness on any w^ork professing 
to treat of Mississippi eminence. 

J. F. H, Clai])orne was born at Natchez, in the Mississippi 
Territory, in the year 1809. He is the eldest son of General F. 
L. Claiborne, who devoted the best years of his life to the mili- 
tary service of the United States, and died in 1815 from the 
effect of wounds that had never healed. At the age of fourteen 
years he was sent to his relations in Virginia to be educated, and 
four years afterwards entered the law office of his distinguished 
kinsman, Hon. Benjamin Watkins Leigh, of Richmond, While 
there he was seized with a slight attack of hemorrhage which 
alarmed his friends, and it was deemed advisable that he should 
return to the milder climate of Mississippi, He resumed his 
studies in the office of Griffith & Quitman, at Natchez, but was 
soon compelled to abandon them and go to sea for his health. 
He repaired to Cuba, and spent the winter on the south side of 
the island- On this trip, and during his residence tliere, he 
chanced to have for his companion a young man in delicate 
health who afterward became distinguished as the famous James 
Bowie, the inventor of the Bowie knife, the hero of the great 
rencounter at Natchez, and finally a martyr of the Alamo, where 
he was engaged in initiating the great scheme of Spanish land 
claims which afterward produced so much litigation in Louisi- 
ana, After having resided six months in Cuba, Mr, Claiborne 
returned to Virginia and entered the law school of General 
Alexander Smyth, one of the most eminent jurists of that com- 
monwealth, at Wytheville, and in less than twelve months, hav- 
ing been examined by Judges Johnston, Allen, and Saunders, 
he was duly admitted to the bar. 



J. F. H. CLAIBOKNE. 517 

On his return to ISTatcliez lie found tlie people greatly agi- 
tated by the contest between Adams and Jackson for tlie Presi- 
dency, and he was prevailed on, by the Jackson executive com- 
mittee, to take charge of the editorial columns of the paper 
then published by the venerable Colonel Andrew Marschalk. 
This step, and delicate health, again diverted him from the pur- 
suit of his profession, and from that time his talents were de- 
voted to politics. 

• Before he had attained his majority he was elected to repre- 
sent his native county in the Legislature, and was twice re- 
elected by large majorities. He then removed to Madison 
County, and while in his twenty-fourth year was nominated by 
acclamation in the first Democratic convention that had assem- 
bled in the State, as a candidate for Congress for the State at 
large. Mr, Claiborne was not present at the convention. Hon. 
Daniel W. Wright, of Monroe County, at that time one of the 
most popular men in the State, and afterwards judge of the High 
Court, was likewise nominated by acclamation, but declined the 
candidacy, and Benjamin W. Edwards, of Hinds County, a man 
of high character and fine talents, was substituted. This was 
the last year of General Jackson's administration, and the people 
of Mississippi were nearly equally divided between the adherents 
of Mr. Yan Buren, of ISTew York, and Mr. Hugh L. White, of 
Tennessee, who were candidates for the Presidency. 

Messrs. Claiborne and Edwards were for Yan Euren. Their 
opponents on the White ticket, in alliance with the Whigs, 
where James C. Wilkins, of IS^atchez, and General David Dick- 
son, of Hinds County. Though the nominees were thus put for- 
ward as political antagonists, representing different parties or 
factions, yet it seems that the p>eople did not so regard them, 
and after a thorough canvass by the several candidates, during 
which Mr. Claiborne addressed the people in every county in the 
State, and often at every precinct in the county, the State was 
carried for Mr. Yan Buren by a small majority, and General 
Dickson (Wliite) and Mr. Claiborne (Yan Buren) were elected 
to Congress by large majorities. The canvass, though animated, 
was conducted in a spirit of great cordiality, and the four gen- 
tlemen maintained for each otlier the highest respect and feel- 



518 BENCH AND BAR OF MISSISSIPPI. 

ings of the warmest friendship. Before Congress assembled 
General Dickson died, and was succeeded by Hon. Samuel J. 
Gholson, of Monroe County, who was chosen at a special 
election. 

Mr. Claiborne stood high in the confidence of his party at 
home, and in Congress was assigned to a prominent committee, 
and took an active part in the debates, more or less acrimonious, 
that occurred at that exciting period. On one occasion, when 
Mr. John Quincy Adams attempted to present a petition from 
slaves in Virginia, and the Southern representatives spontane- 
ously retired from their seats and assembled in a committee- 
room to discuss the situation, Mr. Henry A. Wise, of Virginia, 
being in the chair, a set of resolutions, to be presented on the 
next day in the House, having been adopted, it was moved 
that the chairman of the meeting be requested to present them. 
Upon which Mr. Claiborne took the floor and said that he arose 
to protest against the motion. That he represented a constitu- 
ency that owned more slaves than any other represented in the 
meeting, and that he would never consent that the gentleman 
from Virginia, who habitually opposed their interests, and often 
voted with Mr. Adams and the abolitionists, should be the organ 
of Mississippi. 

At which Mr. "Wise, greatly excited, pointed his finger 
towards Mr. Claiborne and said, " You shall hear from me to- 
night." 

At this moment General Glasscock, of Georgia, in a voice 
that was heard far beyond the chamber, cried out, " I agree 
with the gentleman from Mississippi. The chairman of this 
meeting shall not represent Georgia in the House." 

By this time there was great confusion, and the meeting was 
about to be resolved into a scene of general hostilities. Messrs. 
Claiborne and Glasscock had already reached the door when 
Mr. Calhoun, who had left his seat in the Senate to attend the 
meeting as a deeply interested spectator, intercepted them and 
prevailed on them to remain, and Mr. John M. Patton, of Vir- 
ginia, a moderate and conservative man, was designated, by 
unanimous consent, to present the resolutions. That Mr. Wise, 
who was both intensely brave and vindictive, never carried out 



J. F. H. CLAIBORNE. 519 

Lis threat was due, most probably, to Mr. Calhoun, and to the 
necessity for unity at that juncture. 

Mr. Claiborne subsequently again came in collision with Mr. 
Wise and Colonel Bailie Peyton, of Tennessee, who were mem- 
bers of a select committee to investigate the management of 
the deposit banks, and M-ere evidently seeking to implicate the 
administration in some illegitimate transactions. One of the wit- 
nesses, Mr. Reuben "Whitney, proved somewhat refractory, and 
refused to be intimidated by the overawing attitude of his inter- 
rogators. He declined to answer a question which he consid- 
ered disrespectful and improper, and at the same time threw 
his arm behind his back. Mr. Peyton cried out, " If you move 
your arm one inch I shall shoot you in your tracks y The 
committee immediately adjourned, and on the next day one 6f 
its members, Mr. Lincoln, of Massachusetts, moved that Whit- 
ney be arrested and brought to the bar of the House. 

Mr. Claiborne moved to amend by adding, "And that he 
be allowed counsel when brought to the bar, ' ' and supported the 
amendment in an elaborate speech, to which Mr. Lincoln, Mr. 
Peyton, and others responded, and to whom Mr. Gholson, of Mis- 
sissippi, rej)lied in an able and pointed argument. The amend- 
ment was adopted. Whitney was in due time acquitted of the 
contempt, and it was established that neither when before the 
committee or at any other time in his life had he ever worn 
arms, and was therefore perfectly innocent of the alleged at- 
tempt to assassinate the investigating committee, or any one of 
them. It appeared, however, from the language used by Mr. 
Peyton to the accused, that the honorable gentleman himself was 
armed. Mr. Claiborne had some peculiar claims on the friend- 
ship of Mr. Peyton, but it is said that for that action the latter 
never forgave him, and from that moment manifested towards 
him a studied estrangement. 

About this time one of the greatest questions that had ever 
agitated the country grew out of the insolvency of the United 
States Bank, and of most of the State banks, the apparent fail- 
ure of the wOiole system, and it became necessary to find some 
agency for managing the tinancial affairs of the Government. 
President Van Buren determined on what was known as the In- 



520 BENCH AND BAR OF MISSISSIPPI. 

dependent Treasury plan, or a complete divorce of the Govern- 
ment from tlie banks. To this end lie called a special session 
of Congress, to assemble on the first Monday in September. 

The terms of the Mississippi members had expired, and the 
regular election would not be held until the first Monday in 
November. Governor Lynch therefore issued his proclamation 
for a special election of members of Congress, to be held on the 
third Monday in July. The Governor's idea was that the mem- 
bers elected under his proclamation were to serve only for the 
special session, but the people generally believed, and the press 
for the most part insisted, that the election could not be for a 
less period than two years, tlie constitutional term. The vote 
stood : Claiborne, 11,203 ; Gholson, 9921; Prentiss, 7143; Acee, 
6691. 

When Congress assembled, the right of tlie Mississippi mem- 
bers was challenged on the first day of the session, by General 
Mercer, of Yirginia, one of the leaders of the Bank party, and 
the question was referred to the Committee on Elections, com- 
posed exclusively of distinguished lawyers, who in due time re- 
ported that Messrs. Claiborne and Gholson had been duly 
elected members of the Twenty-fifth Congress. 

By this time the Bank party in Mississippi — then powerful in 
numbers and talents, and controlling most of the capital of the 
State, with the power to favor or to crush all who were indebt- 
ed to them, and with one of their party in the executive chair 
wielding the official patronage, and influenced by urgent advices 
from Washington and the commercial centres of the North — 
determined to oust the sitting members if they could. 

They therefore assumed that the July election was for the 
special session only, and Messrs. Prentiss and Word were in- 
duced to take the field and make a thorougli canvass of the 
State, with all the machinery of the banks in operation to aid 
them. They canvassed without opposition. Messrs. Claiborne 
and Gholson were in their seats, voting steadily with the admin- 
istration, at a time when parties were nearly equally balanced, 
and their votes on the vital questions of the day could not be 
spared. The sitting members were disposed to resign their 
seats and return to canvass the State, but at a confidential con- 



J. r. H. CLAIBOENE. 521 

ference of all the leadino; friends of the adniinistration in both 
Houses of Congress it was determined that it was their duty to 
remain and cast their votes for the important measure impend- 
ing, in which the Government and the party had staked their 
fate. At the same time a caucus of the Democratic members of 
the Mississippi Legislature, with many eminent citizens from all 
parts of the State, transmitted to them resolutions to the same 
effect. The election was held in Kovember, and the vote 
stood : Prentiss, 13,651; Word, 12,310 ; Claiborne, 6258 ; Ghol- 
son, 6032. The two latter, however, were not candidivtes. 
The votes they received were spontaneously cast by ardent par- 
tisans, but the great body of their friends abstained from vot- 
ing, considering them already elected for the entire term. 

When Messrs. Prentiss and Word presented themselves, they 
found the seats they claimed occupied. The question, of 
course, had to go to the Committee on Elections, who again re- 
ported substantially as before. It was then that Mr. Prentiss 
made his celebrated speech, and proved himself the most 
eloquent man in the United States. Both of the sitting mem- 
bers were prevented by sickness from making a reply. Mr. 
Gholson, who was fully capable of arguing a question of law or 
fact with any adversary, was prostrated with typhoid pneu- 
monia, and Mr, Claiborne, who had few superiors in the arts of 
rhetoric and in eloquence, was suffering from a violent attack 
of hemorrhage, with which he was seized in the room of the 
Committee of Foreign Relations, occasioned, no doubt, by the 
excitement of the contest, from which he has never entirely 
recovered, and has never since then ventured to deliver a public 
address. 

After a protracted and violent contest, in which -every man 
mustered under his party banner, the House reversed its de- 
cision as to the sitting members, but at the same time refused 
to allow the claimants their seats, and the whole matter went 
back to the people. Messrs. Prentiss and Word renewed the 
canvass with great activity. Mr. Gholson, disgusted, retired 
from the contest, and Mr. Claiborne went to Havana to recover 
his health. The people, however, put forward his name, and 
with him General Davis, of Marshall County. The vote stood : 



522 BENCH A:ND BAR OF MISSISSIPPI. 

Prentiss, 12,722 ; Word, 12,077; Claiborne, 11,776; Davis, 
11,346. 

This terminated the public career of Mr. Claiborne. He re- 
solved never again to ask or accept oflSce, and though many op- 
portunities have offered it, he has adhered to his resolution. He 
attached himself to the press, and continued to maintain with 
unabated vigor the doctrines of the Democratic party on all the 
issues of the day. 

During all the excitement of this contest the relations of the 
parties had been perfectly friendly, but it was the fate of Mr. 
Claiborne to come once more in collision with his celebrated 
adversary, and under circumstances which did not result so ami- 
cably. 

In 1842 Congress established a board of commissioners to 
examine and adjudicate the claims of the Choctaws under the 
fourteenth article of their last treaty with the United States. 
Mr. Claiborne, feeling a deep interest in the Indians, was ap- 
pointed president of this board. These claims, if allowed, 
would have covered the best lands in many of the new counties. 
The claimants were required to swear that they had never dis- 
posed of their claims. But in the progress of the investigation 
it was found that their claims had been purchased for a very in- 
adequate consideration by a company which extended through 
several States and comprised many influential men, some in 
high official position. Mr. Prentiss had been engaged as attor- 
ney for the company, on a contingent fee of $100,000, and at- 
tended the meetings of the commissioners. At one of these 
meetings Mr. Claiborne exposed the whole transaction, and 
avowed his determination to submit the matter to the authorities 
at Washington. This occasioned a violent scene of criminations 
and recriminations. Mr. Prentiss and his friends hastened to 
Washington, and were there confronted by a printed expose of 
the case from the pen of Mr. Claiborne, which lay on the desk 
of every member of Congress. Mr. John Bell, of Tennessee, 
moved to refer the matter to a select committee, which would 
have been appointed by the Speaker, who had an interest in the 
claims. Mr. Thompson, of Mississippi, chairman of the Commit- 
tee on Indian Affairs, moved to refer it to his committee. After 



J. F. II. CLAIBORNE. 523 

a bitter fight liis motion prevailed, and the phin recommended 
by Mr. Chiiborne was adopted— to pay the Indians neither land 
nor money, bnt to allow them the valne of their claims, remove 
them west, fnnd the money, and pay them the interest annu- 
ally. Thus the great speculation ended, but the exasperations 
its failure occasioned lasted for many years. 

In 18-1:4 Mr. Claiborne moved to New Orleans and became 
editor of the Jefersonian, the State journal, which was pub- 
lished in both French and English, and of the Statesman, in 
English and German, devoting twelve hours daily to these 
enterprises. When Mr. Pierce, between whom and ^fr. Clai- 
borne there existed a long and close intimacy, was nominated 
for the Presidency, Mr. Claiborne was induced by tlie lion. 
John Slidell and the lion. E. La Sere to become the editor of 
the Louisiana Courier, the oldest paper in the city. Mr. 
Pierce warndy invited him to Washington, to fill a prominent 
position there, or go abroad ; but his health being extremely 
precarious, he retired to the sea-coast of Mississippi and there 
engaged in the culture of sea-island cotton, where he remained 
as a planter until tb.e outbreak of the war. 

For the last three years he has resided near Natchez, en- 
gaged in writing the " History of Mississippi." Colonel Clai- 
borne is the author of several biographical works of great 
merit, and his history will no doubt take its ]3lace as a standard 
in the great historical chain. He is a writer of remarkable 
fluency, and his style is chaste and elegant. He is a habitual 
student, and his memory is stored with recollections of the last 
fifty years. His literary attainments have placed him in the 
ranks of the first scholars of the age. The University of Mis- 
sissippi has conferred upon him the degree of LL.I)., and he is 
a member of the Historical Society of Wisconsin, of the His- 
torical Society of Alabama, and has recently been elected Fellow 
of the Royal Historical Society of London. 

His life is an exemplary model of temperance and moral 
rectitude. He is not attached to any church, and is by no means 
a saint or a puritan ; but he never attends places of amuse- 
ment ; has never been at a public dinner or a political conven- 
tion ; never entered a gambling-house or race-course ; never 



\ 



624 BENCH AND BAR OF MISSISSIPPI.' 

played a game of billiards, chess, or backgammon ; never car- 
ried a bowie-knife or pistol ; never smokes or chews tobacco ; 
never uses an oath ; is strictly temperate ; never was a witness 
in court, and never had a lawsuit. Yet, while he rarely 
goes from home, no man enjoys society more, and he is devoted 
to his friends. He often remarks that one of his greatest con- 
solations is that he has lived to become reconciled to every on;; 
with whom he came in collision, and that he will meet them as 
friends in the spirit land. His eye tills with tears when he 
refers to his last interview with the dying orator, S. S. Prentiss, 
which was brought about by their mutual friend, the late Gov- 
ernor John J. McUae. 

Colonel Claiborne adheres to his ancient political faith, but 
blames both sections for the war — the North for its unconstitu- 
tional encroachments, the South for precipitate action and want 
of statesmanshiiD in not providing for the gradual emancipation 
of the slaves, thus reconciling itself to the civilization of the age 
and acquitting its conscience of a great crime. He considers 
that the old Federal Union with the reserved powers lodged in 
the States was extinguished by the war ; that we noAV have a 
National (xovernment, exercising as much force and power as any 
in Europe ; that efforts to embarrass it, or to restore the old 
system, will be abortive and injurious ; and that our true policy 
is a pronounced loyalty to the (Tovernment, and thus build up 
our waste places and secure public order and tranquillity. 

For other particulars of this geiitlenum's career reference is 
made to the following article from the Pennsylvania Inquirer, 
then the leading organ of the national Whig party : 

EXTRACT TO THE EDITOR, DATED 

Washington, January 28, 1837. 
It has occurred to me that the dullness of political correspond- 
ence from Washington might be enlivened by incidental 
sketches of the men av1u> Hourish in the National Councils ; 
and as it is ecjually my duty and jjleasure to make my letters as 
interesting as practicable, I shall in a few moments proceed to 
give you a miniature portrait of the youngest member of the 
House of Representatives. 



J. F. H. CLAIBORNE. 625 

1 am not unaware that, in writing sketches of the kind, the 
paragraphist lays himself liable to censure on the part of party, 
and to disapprobation on the part of the subject delineated. I 
have experienced these evils ; but as I am not one of those hinds 
or bondmen so ably described by Sir Walter Scott in his inim- 
itable novel of " Ivanhoe," I shall attempt to sketch the Hon. 
John F. II. Claiborne, of Mississippi, who is, as I before said, 
the youngest member of the House of Eepresentatives. 

Mr. Claiborne is a native of Mississippi, and it is a fact 
somewhat remarkable that he is the only member from the 
west of the mountains who is a native-born citizen of that 
region. He was lineally descended from the Claibornes of 
Virginia, a family conspicuous in the political annals of the 
"Old Dominion" and Louisiana. From his father he inher- 
ited a patrimonial estate equal to the demands of a classical edu- 
cation, and those otlier essentials which are indisj)ensable to the 
completion of a well-educated gentleman. 

After having completed his education in the best seminaries 
of learning in the Valley of the Mississij^pi, his thirst for letters 
induced him to devote himself to the duties of the public 
press. But as he was not content with a mere knowledge of 
the art of the editorial profession, he resolved to become a 
practical printer, and with this view learned the business of a 
setter of types. As soon as he had become a printer in theory 
and in fact, he j)laced himself at the head of a news^Japer in 
Mississippi, and was in fact and in theory its editor. 

His earliest efforts as an editor were directed to tlie advance- 
ment of the political fortunes of General Jackson, and whilst 
he was thus engaged it was my fortune to be most warmly and 
zealously employed in striving to defeat the hopes of the old 
soldier. And I well recollect that in those days of turmoil 
and political war my j^aper and his, thougli located at distant 
points of the Union, not unfrequently came in collision. 

In the year 1835, Mr. Claiborne having, as the editor of a 
public newspaper, assisted in the business of elevating other 
men to office, arrived at the conclusion that he should not be 
guilty of any act of injustice if he " looked aloft"' for his own 
preferment. He accordingly, in conformity with the usages of 



526 BENCH AND BAE OF MISSISSIPPI. 

tlie Sontli and Soutliwest, nominated himself a candidate for 
Congress, and was elected without difficulty. On making liis 
entrance at Washington, he modestly held himself in the back- 
ground—a course, by the way, which prudence and interest 
should always dictate to the candidate for legislative honors — and, 
if I recollect aright, did not make his "first appearance" on 
tlie legislative stage till late in the session. Ill health attended 
him most of the session, and yet he was a daily attendant on the 
House of Tlepresentatives. I ought to have remarked in 
another place that Mr. Claiborne, before he had attained the 
age of twenty-one years, was elected to represent the city of 
Katchez in the popular branch of the Mississippi Legislature, 
Avhich position he continued to occupy till he was elected to 
CVjngress. 

At the commencement of the present session, in accordance 
with custom and the dictates of friendship and duty, he was 
called to announce to the House the death of his late colleague, 
the Hon. David Dickson. He rose to discharge the painful 
office imder evident and strong embarrassment ; but at last, 
controlling his feelings, he proceeded to offer a few unstud- 
ied and generous remarks on the character of the deceased, pre- 
paratory to offering the usual resolution, but before he closed 
he had won every heart and elicited the sympathies and tears 
of the assembled multitude. Never did man effect more in so 
few words ; never was a stronger feeling produced by the elo- 
quence of the unpremeditated language of the heart. 

Although nothing like effect was aimed at, the speech pro- 
duced everything that could have been desired, and Mr. Clai- 
borne was immediately ranked among the most eloquent orators 
of the House of Representatives. 

Since the time just referred to Mr. Claiborne has frequently 
addressed the House with admitted success and approbation, 
and never rises without commanding undivided attention. 

In politics he acts with the administration ; and though not 
a blind or a mad partisan, he yields to it a steady and a com- 
manding support. In doing this he does not find an admirer 
in me ; aiul it is to be hoped, if he supports Mr. Van Buren's 
administration— and he will do it to a certainty — that it will be 



J. F. II. CLAIBORNE. 527 

worthy of liis aid and worthy of the country. In his devotion 
to Mississippi he is sortiewlmt entlmsiastic, if not ahsohitely 
fanatical, and, in mj- opinion, carries his sectional prejudices 
to an unnecessary extent. 

On the abolition question he is exceedingly ultra, and if he 
possessed the power, I doubt not would soon silence all agi- 
tation on that subject by the passage of proscriptive edicts. 
Having been born and educated in a land of slaves, and being a 
large slave-holder himself, it is but natural that he should be 
somewhat ardent in relation to the subject ; but if he hopes to 
put an end to free discussion and the freedom of the press at 
the North, he will find thousands who, opposed as they may be 
to the fanaticism of abolition, and ready to protect the South in 
the enjoyment of her chartered rights, will never surrender one 
iota of that liberty of speech, of action, and of the press, which 
is the birthright, the glory, and the boast of every free Anglo- 
Saxon American. The dastard of the North who would sur- 
render the birthright of a freeman deserves nothing but the 
execration of our common country. 

There is not a paragraph in Mr. Claiborne's political text- 
book that I can assent to. He is the friend of the administra- 
tion — an opponent of the tariff — an opponent to all schemes for 
the distribution of the public lands : to all his positions I stand 
in the relation of the antipodes to the meridian. As a man of 
talents, as a scholar, and as one of the most promising young 
statesmen, he has my admiration. 

I did intend to offer some extended specimens of his manner 
and matter as an orator, but as I have already exceeded my 
limits, I must content myself with offering a few paragraphs 
only. The following is an extract from a speech of his, deliv- 
ered a few days since, on Mr. Chilton Allan's resolution to 
distribute the public lands : 

" Sir, it is unwise thus to sport with the affections of your 
people ; it is hard thus to deprive one of his home, humble 
though it be. Sprung from the earth, and destined to return 
to it, every man wishes to acquire an interest in it — some little 
spot that he may call his own. It is a deep, absorbing feeling, 
that nature has planted in us. The sailor on the " vasty 



528 BENCH AND BAR OF MISSISSIPPI. 

doep ;" tlie lone Indian and wild-bee hunter on tlie prairies of 

Missouri ; the mountaineer, as he threads his chamois -track ; 

and the soldier, perishing for fame ere he freezes into a stiffened 

corse, dreams, all dream of their earlj home ; and when every 

other feeling is subdued and withered, the heart that would 

not blench at scenes of crime and blood will soften under the 

' Hans de Vache,' the early song of childhood. 

" It is an undying feeling ; and when one has gone out from 

his father's wasted roof, and in the untrodden forest clustered 

his family around some liuml)le shed, can he see it wrested from 

him by the laws of his country without cursing that country 

and those who govern it ? 

* -X- * * -K- * * 

" Mr. Sjieaker, for years past our legislation and our Con- 
stitution, or at least the spirit of our Constitution, have been 
frequently antipodes to each other. The Constitution rose from 
the wreck of ancient prejudices, a sti-ucture of light and beauty, 
based upon the great principle of equal rights, and dedicated 
to rational liberty and law. The other has too often been 
deformed by features incompatible with tlie genius of the age ; 
stamped M'ith the crude conceptions of feudal times ; fettered 
with the restrictions dug up from sepulchred centuries. Thus 
your criminal code in this age of philosophy is founded on the 
precepts of Draco. The dungeon and the scaffold do their work 
as they did a thousand years ago, and the Promethean light of 
science that we hold in our hands serves but to show the skele- 
tons of the victims shut up for del)t who have perished amid 
the death damps of your jails and dungeons. The same current 
runs through your whole system of jurisprudence.*" 

Mr. Claiborne is an ardent advocate, not only of the project 
now before the country for the recognition of the independence 
of Texas, but an advocate for the annexation of that province 
to this Union. Here again I am most warmly opposed to him. 
In the speech from which I have already quoted he thus spoke 
on the subject : 

" Mr. Speaker, this is the only Government that ever specu- 
lated in the soil. England, when she held her dominion here, 
was prodigal in her donations. Spain gave away her lands. 



J. F. II. CLAIBORNE. 529 

Her sons were tlie pioneers of tliis new world : nor storm, nor 
nnknown seas, nor shipwreck could deter tliem. On, on tliej 
went, in the career of high adventure. Land and honors were 
tlie rewards she held out to thcni, and their whole history is a 
series of jihenomena, from the outset of her great navigator to 
the downfall of Montezunux— the most extraordinary triumph 
ever obtained by civilized valor over physical force. Texas has 
pursued the same policy, and its wisdom is evident. If her 
])ublic domain had been fettered with the same legal restraints 
to settlement that exist here, not five hundred of the many 
thousands now there would have crossed the Sabine. But she 
has invited them by liberal donations ; and when that soil was 
invaded and the flag of despotism reeking over her Ijeautiful 
prairies, look how bravely those emigrants have rushed to lier 
defence. Oh, sir, you may rifle the leaves of liistory fur deeds 
of fame, you may search among the fallen columns and mutilated 
tombs of Greece and Rome, immortal even in their dissolu- 
tion, but you will never find a cause more sacred, that has been 
more nobly maintained, than the cause of Texas. Land of the 
brave and'free ! refuge of the unfortunate ! home of the poor ! 
soon may thy star shine in cloudless beauty from our own loved 
banner of living glory." 

The quotations I have made will afford you some idea of 
Mr. Claiborne's eloquence. He is always impassioned, and 
never speaks without evincing that feeling which is the peculiar 
attribute of genius, and which can only be subdued and chast- 
ened by age and experience. He is now on the minor side of 
twenty-eight years ; his person is tall and slender, and has evi- 
dently suffered from those diseases which are peculiar to a 
Southern climate. His voice is round, full, and melodious, and 
his action chaste, dignitied, and original. 

Possessed of a large fortune, the greater part of which was 
acquired bv his osvn industry and enterprise, he has early in life 
devoted himself to politics ; and, with resources, intellectual, 
fiscal and physical, ample and at his immediate command, I see 
no reason why he should not ultimately attain that goal towards 
which a commendable ambition directs his steps. 



APPENDIX 



APPEI^DIX. 



JUDICIAL DATA. 

JUDGES OF TUl-: SUPREME COURT, CIRCUIT JUDGES, CHANCELLORS, 
\ • 

AND ATTORNEYS-GENERAL OF MlSSISSIPn, SINCE THE ORGANI- 
ZATION OF THE STATE GOVERNMENT. 

Under the first Constitution of Mississippi, cadopted in 181T, 
tlie Supreme Court was held semi-annually by the Circuit Judges 
sitting in bank at the capital of the State. The Judges during 
that period— 1817-1832 — and the years in which they wei'e re- 
spectively appointed, were as follows : 

John P. Hampton, C.J. ; W. B. Shields, John Taylor, Pow- 
hatan Ellis, Joshua G. Clarke, 1818 ; Walter Leake, 1820 ; Liv- 
ingston B. Metcalf, 1821 ; Richard Stockton, 1822 ; Edward 
Turner, C.J., 1824; J. Caldwell, 1825 ; John Black, George 
Winchester, 182(5 ; William B. Grittith, Harry Cage, 1827 ; 
Isaac R. Nicholson, 1828 ; William L. Sharkey, 1831. 

Judges of the High Court of Errors and xippeals elected by . 
the people under the Constitution of 1832 : 

William L. Sharkey, C.J. ; Daniel Wright, Cotesworth P. 
Smith, 1833 ; P. Rutilius R. Pray, 1837 ; James F. Trotter, 
1839 ; Cotesworth P. Smith, Edward Turner, 18-1:0 ; Alexander 
M. Clayton, Reuben Davis, 18-12 ; Josephs. B. Thacher, 1843 ; 

A. M, Clayton, 1845 ; W, L. Sharkey, C.J.; J. S. B. Thacher, 
1847 ; William Yerger, Collin S. Tarpley, 1851 ; Cotesworth 
P. Smith, C.J. ; Ephraim S. Fisher, Alexander IL Handy, 
1855 ; William L. Harris, 1859 ; Alexander II. Handy, C.J.; 

B. W. Hnrst, William L. Harris, Henry T. Ellett, 1863. 

Judges of the Supreme Court appointed by tlie Governor 
under the Constitution of 1808 : 



534 APPENDIX. 

Thomas Sliackleford, C.J. ; Epliraim G. Peyton, E. Jeffords, 
1868 ; EpliraimG. Peyton, C.J. ; Horatio F. Simrall, Jonathan 
Tarbell, 1870 ; Horatio Simrall, C.J. ; H. H. Chalmers, J. A. 
P. Campbell, 1876 ; J. Z. George, C.J., 1879. 

Judge George was elected to the United States Senate by the 
Legislature of 1880, but retains his position upon the bench, 
which, it is understood, he will not resign until he takes his seat 
in the Senate on the -Ith of March, 1881. Judge Chalmers will 
then be Chief Justice by virtue of his seniority in office. 

Judges .of the Superior Court of Chancery, 1821-1857 : 
Joshua G. Clarke, 1821 ; John A. Quitman, 1828 ; Edward 

Turner, 1835 ; Robert H. Buckner, 1889 ; Stephen Cocke, 

1846 ; Charles Scott, 1853. 

Vice-Chancellors : 

Joseph W. Chalmers, appointed for the IS^orthern District, 
established in 1842 ; succeeded by Henry Dickenson, elected in 
1843 ; James M. Smiley, elected for the Southern District, 
established in 1846 ; George W. Doharty for the Northern 
District, 1850 ; B. C. Buckley for the Southern District, 1853. 

The Chancery Courts Avere abolished in 1857, and their juris- 
diction conferred upon the Circuit Judges. 

Judges of the Circuit Courts, elected under the Constitution 
of 1832 : 

T. A. Willis, A. M. Keegan, James F. Trotter, Alexander 
Montgomery, E. C. Wilkinson, 1833 ; T. B. Stirling, J. Scott, 
1834 ; J. Walker, E. Hughes, G. Irish, 1835 ; James M. 
Maury, 1836 ; R. S. G. Perkins, Caswell R. Clifton, Buckner 
C. Harris, I). O. Shattuck, G. Coalter, T. S. Stirling, 1837 ; 
II. S. Bennett, Isaac R. Nicholson, J. A. Marshall, 1838 ; V. 
T. Crawford, F. W. Huling, J. Battaille, 1840 ; Franklin E. 
Plummer, G. Coalter, C. C. Cage, Albert G. Brown, J. H. 
Rollins, M. L. Fitch, S. Adams, II. S. Bennett, Y. T. Craw- 
ford, B. F. Coruthers, H. Mounger, James M. Howry, 1841 ; 
T. A. Willis, 1843 ; Stanhope Posey, T. A. Willis, G. Coal- 
ter, A. B. Dawson, R. C. Perry, F. M. Rogers, H. R. Miller, 
1845 ; Wiley P. Harris, 1847 ; Stanhope Posey, William S. 



APPENDIX. 535 

Bodley, J. E. McXair, Jacob S. Yerger, John Walter, E. G. 
Henry, William L. Harris, P. D. Scruggs, William M. Han- 
cock," Joel M. Acker, William Cothran, 1847-1860 ; Hiram 
Casaidy, H. W. Foote, J. E. McNair, J. A. P. Campbell, J. 
S. Hamm, J. W. Thompson, 18G0-1S08. 

Appointed by the Governor under the Gonstitution of 1868 : 
Green C. Chandler, James M. Smiley, A. Alderson, W. H. 

Hancock, Uriah Millsaps, Robert Leachman, J. A. Orr, W. D. 

Bradford, B. B. Boone, Orlando Davis, C. C. Shackleford, E. 

S. Fisher, Jason Niles, W. B. Cunningham, George D. Brown. 

The districts having been changed is the cause of their omis- 
sion np to this period. The following Judges were appointed 
in 1876, and are yet on the bencli, except Judge Cothran, who 
has lately died : 

1st District, J. A. Green. 
2d " J. W. C. Watson. 
3d " Samuel Powell. 
4th " B. F. Trimble. 
5th " W. M. Cothran. 
6th " J. M. Arnold. 
7th " J. S. Hamm. 
8tli " A. G. Mayers. 
9th " S. S. Calhoun. 
10th " J. B. Chrisman. 
11th, Special Statutory District, embracing only 

Warren County, U. M. Young. 
12th, Special Statutory District, comprising only 
Adams County, Ralph North. 

District Chancellors appointed by the Governor under the 
Chancery Court Act of 1871 : 

1st District, William G. Henderson. 
2d " G. S. McMillan. 
3d " Wesley Drane. 
4th " Thomas Christian. 
5th " Theodrie Lyon. 
6th " O. H. Whitfield. 



53G 







APPENDIX. 


Tth: 


District 


;, Austin Pollard. 


8tli 




A. E. Reynolds. 


9th 




De Witt Stearns. 


lOth 




J. F. Simmons. 


lltli 




Dallas P. Colley. 


12th 




J. J. Hooker. 


13tli 




Samuel Young. 


14th 




Edward Hill. 


15th 




E. Stafford. 


16th 




E. W. Cabinniss. 


ITth 




G. R. Clowen. 


IStli 




D. ]^. Walker. 


19th 




J. W. EUis. 


20t]i 




E. G. Peyton, Jr 



J. J. Hooker died in 1873, and W. A. Drennan was ap- 
pointed to fill the unexpired term ; but he was removed by 
Governor Ames for refusing bail to one Morgan, who had mur- 
dered his competitor for the office of sheriff of Yazoo County. 
D. N. Walker died also in 1873, and J. R. Goltury was ap- 
pointed to fill his term. 

Appointed by Governor Ames in 1875 : 

1st District, William G. Henderson. 



2d 


a 


G. S. McMillan. 


3d 


a 


R. Boyd. 


4tli 


a 


J. J. Dennis. 


5th 


a 


C. A. Sullivan. 


6th 


u 


0. H. Whitfield. 


Tth 


a 


William D. Frazee. 


8th 


i( 


C. C. Cullins. 


9th 


a 


L. C. Abbott. 


10th 


a 


J. ]S\ Campbell. 


11th 


a 


P. P. Bailey. 


12th 


a 


Thomas Waltoii. 


13th 


a 


William Beck. 


14th 


ii. 


E. Hill. 


15th 


ii 


E. Stafford. 


16th 


a 


II. R. Ware. 



APPENDIX. 



537 



ITtli District, H. B. Stone. 
18tli " E. H. Osgood. 
lOtli " Iliram Cassidy. 
20tli " E. G. Peyton. 



CORRECTION— PAGES 536, 537. 



I omitted to state that J. C. Gray was appointed Chancellor of the 
3d, and Chas. Clark of the 4th District, in 1876. They died in 1878, 
and were succeeded by J. B. Morgan and W. G. Phelps respectively. 
Also, that the initials of Chancellor Graham are T. B., instead of G. 
B., and those of Chancellor Berry, T. Y., instead of G. G. Also, 
that Chancellor Brame declined a re- appointment in 1880; and that 
H. S. Van Eaton succeeded Chancellor Berry, I will add, in this 
connection, that my remarks in reference to the efficiency of the 
Chancellors, were intended to apply only to some of those in office 
prior to 1876. I had no intention to reflect in the least on those in 
office since, inasmuch as it is well understood that since 1876, those 
officers have been noted for their ability, integrity and high judicial 
virtues. I make this statement because some of my friends have 
suggested that my remarks in this respect might be misconstrued. 



?,r m 
20 to 



only 
only 



All 01 tnese -u^erc reappoiiirea m ij^ou, except i^. j>rame, 
wlio was succeeded by Frank A. Critz. G. G. Berry has also 
been superseded by some one. 

In consequence of the appointment of some perhaps totally 
incompetent persons to this bench, and some ^vliose characters 
for honesty were impeachable, these courts have not enjoyed 
fully the confidence and respect due to their functions, nor the 
popularity deserved by their organic efficiency. But it is to be 
hoped that amid such ample and capable material, many young 
Eldons, Ilardwickes, Kents, and Buckners may yet assert them- 
selves in Mississippi, and raise these courts to a standard of emi- 
nence efpialled only by their importance. 

Attorneys-General of Mississippi since-the organization of the 
State Government : 

Lyman Harding, 1818; Edward Turner, 1820; Thomas B. 
Reed, 1821 ; Richard Stockton, 1825 ; George Adams, 1827 ; 



o3i> APPENDIX. 

Tth District, Austin Pollard. 
8th " A. E. Reynolds. 
9th " De Witt Stearns. 
10th " J. F. Simmons. 



Iff 



./ 



J. 

point 
Gove 
derec 

D. ]S 
poini 

A] 



1st District, William G. Henderson. 

2d '' G. S. McMillan. 

3d " R. Bojd. 

4th " J. J. Dennis. 

5th " C. A. Snllivan. 

0th " O. 11. Whittield. 

Tth " William D. Frazee. 

8th " C. C. Cnllins. 

9th '' L. C. Abbott. 

lOth " J. N. Campbell. 

11th " P. P. Bailey. 

12th " Thomas Walton. 

13th " William Beck. 

14th " E. Hill. 

15th " E. Stafford. 

16th " ir. R. Ware. 



APPENDIX. 537 

ITth District, P. B. Stone. 
ISth " E. IT. Osgood. 
19th " Ilirain Cassidy. 
20tli " E. G. Peyton. 
Upon the accession of the Democratic party to power in 
1876, the nnmber of these chancellors was reduced from 20 to 
12, and the j^ersons aj)pointed were as follows : 
1st District, L. Ilaughton. 
2d " A. B. Fly. 
3d " J. B. Morgan. 
4th " W. G. Phelps. 
5th " R. W. Williamson. 
6th " L. Brame. 
7th " George Wood. 
8th " G. B. Graham. 
9th " E. G. Peyton. 
10th " G. G. Berry. 
11th, vSpecial Statutory District, comprising only 

Warren County, U. M. Young. 
12th, Special Statutory District, comprising only 
Adams County, Palph North. 

All of these were reappointed in 1880, except L. Brame, 
who was succeeded by Frank A. Critz. G. G. Berry lias also 
been superseded by some one. 

In consequence of the appointment of some perhaps totally 
incompetent persons to this bench, and some whose characters 
for honesty were impeachable, these courts have not enjoyed 
fully the confidence and respect due to their functions, nor the 
popularity deserved by their organic efficiency. But it is to be 
hoped that amid such amj^le and capable material, many young 
Eldons, Ilardwickes, Kents, and Buckners may yet assert them- 
selves in Mississippi, and raise these courts to a standard of emi- 
nence e(pialled only by their importance. 

Attorneys-General of Mississippi since-the organization of tlie 
State Government : 

Lyman Harding, 1818; Edward Turner, 1820; Thomas B. 
Reed, 1821 ; Richard Stockton, 1825 ; George Adams, 1827 ; 



538 APPEXDIX. 

liiehard M. Gains, 18;^() ; M. I). Patten, 1834 ; Thomas F. 
Collins, 1837 ; John 1). Freeman, 1841, re-elected in 1845 ; D. 
C. Glenn, 1850, re-elected in 1854; Thomas J. Wharton, 
1S58 : Charles E. Hooker, 18(U) ; Joshua Morris, 18G9 ; J. e! 
Harris, 1873 ; Thomas C. Catchings, 1875. 

The position of the last-named ii^entleman challeni^es obser- 
vation. His career is laden with peculiar responsibility. The 
time of his election, his youth, and his talents, constitute him 
in some way a representatis^e and leader of the young bar of the 
State, and his masterly course as Attorney-General has proudly 
merited the relation. 



APPENDIX. 



530 



LIST OF BIOGRAPHIES IN ALPHABETICAL ORDER. 



Adams, Robert H. . . . 
Anderson, Fulton . . . . 
Anderson, Willitim E. 
Barksdale, William R 
Barry, William S. 

Barton, Roger 

Black, Jolin 

Boyd, Samuel S 

Brooke-, Walker 

Brown, Albert G. . . . 
Buckner, Robert H. . . 

Cage, Harry 

Chalmers, Joseph W 

Child, Joshua 

Claiborne, J. F. H . . . 
Clayton, Alexander M 
Clayton, George R.. . . 

Clarke, Joshua G 

Cocke, Stephen 

Davis, Joseph E 

Dowd, William F 

Ellis, Powhatan 

Fisher, Epliraim S. . . 
Foote, Henry S. . . . 
Gholson, Samuel J 

Glenn, David C 

Grayson, Spence M. . . 
Griffith, William B... 

Gulon, John I 

Hampton, John P . . . 
Handy, Alexander II. 

Hardiufj, Lyman 

Harris, William L. . . . 
Harris, Bnckner C. . . . 
Harrison, James T. . . . 

Henderson, John 

Holt, Josei^h 

Howard, Volney E. . . . 

Howry, James M 

Hutchinson, Anderson 
Johnston, Amos R. . . 
Lake, William A 



PAGE 

34 
429 

258 
481 
295 
265 
90 
142 
316 
277 
165 



/ 



Leake, Walter 

Magee, Eugene 

Marsh, Samuel P 

Martin, John H 

Mayes, Daniel 

McMurran, John T 

McNutt, Alexander G.. . 

Mitchell, James C 

Montgomerj-, Alexander. 

Nicholson, Isaac R 

Peyton, Epliraim G 



^ 



102 -Phelan, James 

177 Poindexter, George. . . . 

99 Pray, P. Rutilius R... . 

516 Prentiss, Sergeant S. . . 

500 Po.tter, George L 

301 Quitman, John A 

89 Rankin, Christopher. . . 

167 Reed, Thomas B 

73 Sale, John B 

396 Scott, Charles 

87 Sharkey, William L. . . 
356 /Smiley, James M 

Smith, Cotesworth P.. 

Stockton, Richard 

Tarpley, Collin S 

Taylor, John , 

Thacher, Joseph S. B. . 

Tompkins, Patrick W. 

Toulmin, Harry 

Trotter, James F 

Turner, Edward 

Vannerson, William. . . 

Walker, Robert J 

W^alter, Harvey W. . . 

Webber, Richard H. . . 

Wilkinson, Edward ('.. 

Winchester, George; . . , 

Wright, Daniel W. . . , 

Yerger, George S 

Yerger, Jacob S 

Yergor, William 



286 
497 
307 
132 
112 
245 

81 
508 

26 
342 
139 
37 
145 
247 
250 
511 
252 
371 
450 



y 



V^ 



135 
137 
144 

288 
254 
140 

lob 

320 
107 
103 
359 
455 

27 
204 
210 
445 
151 

22 

23 
391 
175 
189 
181 
198 

92 
366 

88 
211 
283 

21 
205 

84 
126 
109 
487 
146 
138 
100 
203 
261 
272 
326 



,'f 



H 109 89 










^«^^ •* • • • 4O 




, ,'/ ^-^^ "^^^ -.. 







. '^l* 






.'4''* • 



i*' . 


















•> ••« . 












^' '"^^.^ 



* TV - ^ ♦ 



V6. A^ * 







•P* > 















o« .^^ 




%/ 



. /^ -.. 








«4q* 



• • 






% 



./\ 















.-^^^ 









^^-n^ 









=&^'^. 



"0^ o' 









-HO*. 



iP'?:, 



" "**0< 



.^ -^-- - - -*-^' \/ ^.^^. %^^^^ 



.•^<^^ 





*$V • IQVR3 * «? ^^ 







•* V 




v*v • • • A^ *^ 









^ SEP 89 

N. MANCHES 
INDIANA 46962 







